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NSW Crest

Supreme Court
New South Wales

Medium Neutral Citation:
RH v Director of Public Prosecutions (NSW) [2013] NSWSC 520
Hearing dates:
3 May 2013
Decision date:
10 May 2013
Jurisdiction:
Common Law
Before:
Hoeben CJ at CL
Decision:

Time extended for the bringing of the appeal pursuant to Pt 51B rule 6 Supreme Court Rules 1970.

Appeal dismissed.

No order as to costs.

Catchwords:
CRIMINAL LAW - Appeal from Magistrate - offender aged 12 - aggravated break and enter - issue on appeal whether prosecution rebutted presumption of doli incapax - admissions by offender - sufficient evidence to rebut presumption.
Legislation Cited:
Crimes Act 1900 - s112(2)
Crimes (Appeal and Review) Act 2001 - s55(1)(b)
Supreme Court Rules 1970 - s51B rule 6(2)(a)
Cases Cited:
BP v Regina; SW v Regina [2006] NSWCCA 172
C (A Minor) v Director of Public Prosecutions [1996] 1 AC 1
Fleet v District Court of NSW [1999] NSWCA 363
R v ALH [2003] VSCA 129; 6 VR 276
Regina v CRH (NSWCCA, 18 December 1996, unreported)
Category:
Principal judgment
Parties:
RH - Plaintiff
Director of Public Prosecutions (NSW) - Defendant
Representation:
Counsel:
Ms D Yehia SC - Plaintiff
Ms A Mitchelmore/Mr N Kelly - Defendant
Solicitors:
Aboriginal Legal Service (NSW/ACT) Ltd - Plaintiff
SC Kavanagh, Solicitor for Public Prosecutions - Defendant
File Number(s):
2012/324592
Decision under appeal
Before:
G Dunlevy LCM

Judgment

1HIS HONOUR:

Nature of proceedings

The plaintiff proceeds by way of amended summons for the following orders:

1. An order pursuant to s51B rule 6(2)(a) Supreme Court Rules 1970 extending time for the institution of the appeal to 18 October 2012.

2. An order pursuant to s55(1)(b) of the Crimes (Appeal and Review) Act 2001 setting aside the plaintiff's conviction.

2The appeal is brought pursuant to s52(1) of that Act from a decision of his Honour Mr Dunlevy LCM of 6 July 2012 in which he convicted the plaintiff of the offence of aggravated break and enter contrary to s112(2) of the Crimes Act 1900 which was said to have occurred between 1 and 2 October 2010. At the time, his Honour was sitting as the Wentworth Children's Court.

3No objection was raised by the defendant to time being extended for the hearing of the appeal. Accordingly, I make that order.

4It was common ground that for the appeal to succeed, the Court had to be satisfied that the decision of his Honour was affected by legal error (Fleet v District Court of NSW [1999] NSWCA 363 at [59]).

5The grounds of appeal were:

Ground 1 - The Magistrate erred in law in finding that there was evidence capable of rebutting beyond a reasonable doubt the presumption of doli incapax.

Ground 2 - The Magistrate erred in law in applying an objective test to the question of whether the presumption of doli incapax was rebutted beyond reasonable doubt.

Ground 3 - The Magistrate erred in law in relying on factual matters that constituted no more than the commission of the offence itself to rebut the presumption of doli incapax.

6No objection was taken by the defendant to the competency of the appeal, i.e. that it did not raise a question of law. Accordingly, the appeal proceeded on that basis.

Factual background

7There was no issue as to the relevant facts. There was no issue that between 8pm on 1 October and 5am on 2 October 2010 at Xxxxxx RH did break and enter the Xxxxxx Fire Station and did steal property belonging to the New South Wales Fire Service in circumstances of aggravation, i.e. that he was in company with another person being his cousin S.

8RH was aged 12 at the time. The only issue in the appeal was whether the evidence before his Honour was sufficient to rebut the presumption of doli incapax in favour of RH.

9That evidence was relevantly:

Investigating Police observed several jemmy marks on the rear door of the main office building of the Xxxxxx Rural Fire Station. The lock on the door of a smaller building, which consisted of an office and storage area, had been jemmied open and the office area had been "ransacked".

A silver ACER laptop computer had been stolen from the office area and several rulers, balloons and cans of soft drink had been stolen from the storage area.

Investigating Police went to the residence of RH. Within a few minutes of searching, one of the Police officers located rulers with the Rural Fire Service logo on them. In the lounge-room, inside a television cabinet, one of the Police officers located a silver ACER laptop computer. There was no issue that these items had been stolen from the Rural Fire Service station on the evening of 1 - 2 October 2010.

In early October 2010 SH, the mother of RH, noticed some rulers with "Fire Brigade" written on them and little packets of coloured pencils in the kitchen. She thought that these had been given to RH by the firemen. When she learned that a computer belonging to the Rural Fire Service had been found in the house, she became very angry and subsequently spoke to RH. Included in the conversation was:

"I said "where did the computer come from?" R said "Don't blame me, baby S."

CK was a cousin of RH and was aged 15. At about 9 or 10pm at night early in October 2010, he was asleep in his bedroom with the window ajar when he heard RH say "I got drinks and that here, I got them from the fire station, I broke in there, I was in with all the fire trucks, I was searching looking for money. I found drinks and balloons and rulers. Me and S got them".

RS then came in through the window and sat near the bed. CK turned on the light and could see that RH had three or four cans of Coke in both his pockets. The next day, CK saw RH walking towards him and could see that he was throwing a large bag of balloons up in the air. The balloons then fell on the ground and then he jumped on the bag and the balloons went all over the road. CK looked at the balloons and could see the word "Fire" written on one of them. RH left the balloons lying in the road and said to CK "Look at I got, I got them last night, I got them from the Fire Station in Xxxxxx".

A few days later, CK was speaking to the sister and cousin of RH. When he asked about RH, he was told "He's at home playing the computer he stole".

10There were photographs of some of the stolen property, but there were no photographs of where that property was found. In particular, there was no photograph of the television cabinet, inside which the computer was found.

11The reasons of his Honour were as follows:

"Because these are Children's Court proceedings and because of the age of the young person, the Police are also required to rebut the presumption of doli incapax in relation to the young person. In that regard, the Police are required to prove beyond a reasonable doubt that the young person knew what he was doing was very wrong or seriously wrong and not merely mischievous. The Prosecution are not required to prove that he knew what he was doing was criminally wrong.

On this issue, a doli incapax cannot be rebutted merely by virtue of the commission of the offence itself. Even if the offence seems quite heinous in nature. And so in examining this issue, the Court does have to go beyond proof of the mere elements of the offence, however, the Court can take into account other facts which are relevant to the commission of the offence and I will refer to that issue very shortly.

...

Thus, the only other element which I need to consider is whether the Police can rebut the presumption of doli incapax. In that regard, I again note the guidance that I provided to myself at the start of this judgment.

In terms of the offence itself, it is notable that the offence was committed on a fire station that is an Emergency Services building. That lends an additional sinister aspect to this case. It marks it as being a very wrong act.

It is also the case that the premises were forcefully entered with the lock, and it was padlocked, being jemmied open. That adds another additional sinister element to this offence. It is not for instance the case that the young person has just snuck in by opening an unlocked door.

In addition to that, another reason why I feel that this offence goes beyond mere mischief or being naughty and can obviously be seen to be very wrong and very much a culpable act is that the office was ransacked and so the young person committing this offence has not just gone in and taken a number of items. He has severely messed up the place so to speak.

The young person has then also subsequently made some attempts to secrete a number of items which he took. The young person also, in talking to CK, appears to be boasting about what he has done.

I am, therefore, satisfied that there are other aspects of this case that go beyond the mere commission of the offence itself and the elements itself and there are other aspects of the facts which lend the commission of this offence a much more sinister air and one which, of themselves, in my view, are sufficient to rebut doli incapax. The actions of the young person go beyond being naughty or even very naughty. They are very serious acts. Not acts of mischief and, in my view, obviously criminal acts.

I have also taken into account the young person's maturity. He is not that young and by the age of twelve he should be well aware that you cannot break into fire stations, particularly in the modern era of universal education, access to the internet, television, radio and so on.

And so, again, conglomerating all of those conclusions I find that doli incapax has been negatived by the prosecution and so, therefore, each element that the prosecution are required to prove has been proved beyond a reasonable doubt."

Applicable Legal Principles

12The presumption was comprehensively examined in C (A Minor) v Director of Public Prosecutions [1996] 1 AC 1. Lord Lowry (with whom the other Lords agreed) delivered the leading judgment. Having examined authority and the arguments both in favour and against the presumption, his Lordship said at 38C:

"A long and uncontradicted line of authority makes two propositions clear. The first is that the prosecution must prove that the child defendant did the act charged and that when doing that act, he knew that it was wrong as to distinct from an act of mere naughtiness or childish mischief. The criminal standard of proof applies. What is required has been variously expressed, as in Blackstone, "strong and clear beyond all doubt or contradiction", or, in Rex v Gorrie (1918) 83 JP 136, "very clear and complete evidence" or, in B v R (1958) 44 Cr App R 1,3 per Lord Parker CJ, "it has often been put in this way, that ... "guilty knowledge must be proved and the evidence to that effect must be clear and beyond all possibility of doubt"."

No doubt, the emphatic tone of some of the directions was due to the Court's anxiety to prevent mere naughty children from being convicted of crimes and in a sterner age, to protect them from the draconian consequences of conviction.

The second clearly established proposition is that evidence to prove the defendant's guilty knowledge, as defined above, must not be the mere proof of the doing of the act charged, however horrifying or obviously wrong that act may be. As Erle J said in Reg v Smith (Sidney) (1845) 1 Cox C C 260:

"A guilty knowledge that he was doing wrong - must be proved by the evidence, and cannot be presumed from the mere commission of the act. You are to determine from a review of the evidence whether it is satisfactorily proved that at the time he fired the rick (if you should be of the opinion he did fire it) he had a guilty knowledge that he was committing a crime."

The report of Rex v Kershaw (1902) 18 TLR 357, 358, where a boy of thirteen was charged with murder, states:

"His Lordship [Bucknill J], in summing up, pointed out that the commission of a crime was in itself no evidence whatever of the guilty state of mind which is essential before a child between the ages of 7 and 14 can be condemned."

In that case the jury found the prisoner guilty of manslaughter and he was sentenced to 10 years penal servitude.

The cases seem to show, logically enough, that the older the defendant is and the more obviously wrong the act, the easier it will generally be to prove guilty knowledge. The surrounding circumstances are of course relevant and what the defendant said or did before or after the act may go to prove his guilty mind. Running away is usually equivocal, as Laws J rightly said it was in the present case, because flight from the scene can as easily follow a naughty action as a wicked one. There must, however, be a few cases where running away would indicate guilty knowledge, where an act is either wrong or innocent and there is no room for mere naughtiness. An example might be selling drugs at a street corner and fleeing at the sight of a policeman."

13In reaching that conclusion Lord Lowry considered the application of the presumption in circumstances where it had been assumed in the court below that the minor charged was a person of ordinary intelligence. At 33D his Lordship said:

"4. The rule is said to be illogical because the presumption can be rebutted by proof that the child was of normal mental capacity for his age; this leads to the conclusion that every child is initially presumed not to be of normal mental capacity for his age, which is absurd. This argument involves a point which I must deal with when considering the second part of the certified question (how to prove that the child is doli capax), but at this stage I will focus on the illogicality. We start with a benevolent presumption of doli incapax, the purpose of which was to protect children between 7 (now by statute 10) and 14 years from the full rigour of the criminal law. The fact that the presumption was rebuttable has led the courts to recognise that the older the child (see B v R 44 CR App R 1,3) and the more obviously heinous the offence, the easier it is to rebut the presumption. Proof of mental normality has in practice (understandably but perhaps not always logically) been largely accepted as proof that the child can distinguish right from wrong and form a criminal intent. The presumption itself is not, and never has been, completely logical; it provides a benevolent safeguard which evidence can remove. Very little evidence is needed, but it must be adduced as part of the prosecution's case or else there will be no case to answer."

14The decision in C v DPP was subjected to strong criticism by the Victorian Court of Appeal (Callaway and Batt JJA and Cummins AJA) in R v ALH [2003] VSCA 129; 6 VR 276. In particular, Callaway JA at [19] - [20] considered that the decision in C v DPP was "unduly restrictive" and had produced "absurdities". Cummins AJA expressed opinions to similar effect at [85] - [86]. Batt JA agreed with those criticisms.

15In deciding this matter, however, I sit as part of the judicial hierarchy of NSW. The leading cases in this State are Regina v CRH (NSWCCA, 18 December 1996, unreported, (Smart, Newman and Hidden JJ)) and BP v Regina; SW v Regina [2006] NSWCCA 172 (Hodgson JA, Adams and Johnson JJ).

16In Regina v CRH Newman J (with whom Smart and Hidden JJ agreed) said:

"In short, it is my view that such Australian authority as exists is consistent with the law as expressed by Lord Lowry in C. This is the law of Australia. That being so, as I have said, the evidence was insufficient to rebut the presumption of doli incapax having regard to the criminal standard of proof."

17In BP and SW, Hodgson JA (with whom Adams and Johnson JJ agreed) said:

"27 The common law concerning the criminal responsibility of children has been modified in New South Wales by s5 of the Children (Criminal Proceedings) Act 1987 (which provides for a conclusive presumption that no child under the age of 10 years can be guilty of an offence), but not otherwise. Accordingly, as regards a child between 10 and 14 years, there remains a presumption that such a child is doli incapax, that is incapable of committing a crime because of lack of understanding of the difference between right and wrong, and consequential lack of mens rea. It is clear that when a child between 10 and 14 years is accused of a crime, the onus is on the prosecution to prove beyond reasonable doubt not only that the child did the act charged, accompanied by the necessary mental element, but also that, when doing it, he or she knew it was seriously wrong, as distinct from an act of mere naughtiness or mischief: The Queen v M (1977) 16 SASR 589; C v DPP [1996] 1 AC 1 at 38; R v CRH, NSWCCA, 18/12/96; R v ALH (2003) 6 VR 276.

28 The child must know that the act is seriously wrong as a matter of morality, or according to the ordinary principles of reasonable persons, not that it is a crime or contrary to law: Stapleton v The Queen (1952) 86 CLR 358, The Queen v M.

29 It has been said that evidence to prove the child's guilty knowledge must not be the mere proof of doing the act charged, however horrifying or obviously wrong the act may be: C v DPP at 38. This was said in CRH to represent the common law of Australia; but it was strongly disapproved by the Victorian Court of Appeal in R v ALH at [20] and [85]-[86]. However, on either view, the circumstances of the offence, such as concern to avoid detection, may be some evidence of knowledge; although, if the concern is consistent with the child thinking that the act is merely naughty, this will carry little weight.

30 It is not necessary to resolve this conflict in this case, because there was evidence in addition to the mere doing of the acts charged. However, I would say that, even if the view expressed in C v DPP and CRH is correct, there should not be a narrow view taken on what are circumstances of the offence that can operate as evidence. For example, in the present case, assuming the jury accepted LD's evidence that she was crying and screaming and struggling and asking BP to stop, these would in my opinion be factors that could support the inference that BP knew that what he was doing was causing great distress to another human being and as such was seriously wrong. That evidence, coupled with the evidence that BP asked SW to stop LD screaming, that BP continued what he was doing after LD said she would tell the police, and the statement of Ms Dockrill, was in my opinion plainly sufficient to base a finding by the jury, beyond reasonable doubt, that BP had sufficient understanding of the wrongness of his conduct."

18It should be noted that in BP and SW evidence was given by a teacher and by a psychologist as to the level of intelligence of the appellants in that case.

19In resolving this matter, I propose to apply the law as stated by Hodgson JA in BP and SW. In my opinion, his Honour's statement of the law is not only consistent with authority, but is appropriately tempered by common sense.

Submissions and consideration

20The first point made by the plaintiff related to the second ground of appeal, i.e., that his Honour had applied an objective test to the question of whether the presumption was rebutted. That ground of appeal was directed to the observation by his Honour at T.6.1 (6 July 2012) where he said:

"I have also taken into account the young person's maturity. He is not that young and by the age of 12 he should be well aware that you cannot break into fire stations, particularly in the modern era of universal education, access to the internet, television, radio and so on."

21The plaintiff submitted that there was no evidence before his Honour which would justify a conclusion that his level of maturity was that of a normal 12 year old and that accordingly, he should be treated as such. The plaintiff submitted that C v DPP made it clear that the prosecution could not assume normal or average intelligence, but that this was a matter which had to be proved.

22It was common ground that the relevant test was a subjective one and concerned the state of mind of the particular minor. It could not be applied on the basis of what a normal child of 12 would have known or thought.

23The only evidence before his Honour as to the plaintiff's level of maturity was the response to his mother when she challenged him about where the computer came from and whether his sister was there, the conversation with his older cousin, CK, that night and on the following day and the comment by his sister that "He's at home playing the computer he stole". Was it open to his Honour to infer from that evidence that the level of maturity of the plaintiff was that of a normal 12 year old. I have concluded, not without some hesitation, that it was not open. The evidence concerning "playing the computer" could refer to very basic operations of it.

24I should observe that not much more evidence would have been required to enable his Honour to properly draw the inference which he did. Evidence from the plaintiff's mother concerning his performance at school or his behaviour generally, would have been sufficient. Absent that sort of evidence, I agree with the plaintiff that this finding by his Honour as to his maturity was not open and that that aspect of the appeal has been made out.

25This does not end the matter. What it means is that when considering the evidence which was before his Honour, I have to ignore that finding. The question remains whether by reference to the evidence as a whole, it was still open to his Honour to find that the presumption had been rebutted. Put another way, had the Crown on the evidence established beyond reasonable doubt that RH knew that what he did at the fire station was seriously wrong as distinct from an act of mere naughtiness or mischief.

26Two matters which his Honour took into account as important were that the object of the break in was a fire station and that the premises were entered by breaking open a padlock by use of a jemmy, as distinct from sneaking into premises which were otherwise unattended. The plaintiff submitted that these were not matters which could be properly taken into account by his Honour since they constituted the "mere proof of the doing of the act charged" as referred to in C v DPP.

27I do not agree. Read in context, the observation in C v DPP was to the effect that it was not sufficient to rely only upon the matters charged. That is not the case here. In any event, as already indicated, I prefer the approach of Hodgson JA in BP and SW to the effect that "there should not be a narrow view taken on what are circumstances of the offence that can operate as evidence".

28The importance of the object of the break-in being a fire station was that it would have been appreciated by the plaintiff that the fire station existed for a specific purpose and that he was not meant to be there. That he was aware of this fact, emerges from statements which he made to CK. Of more significance is the use of a jemmy to break open the padlock. I have concluded that it was well open to his Honour to conclude that this was something which could be taken into account with other circumstances to indicate an awareness on the part of the plaintiff that what he was doing was seriously wrong. This was an obviously wrongful act which required some planning, i.e., having a jemmy available.

29The third matter relied upon by his Honour was that the office had been "ransacked". It was open to his Honour to take that matter into account with other facts. The difficulty for his Honour, and for this Court, is that what was meant by the word "ransack" was never explained by the two police officers who used it. In the absence of any explanation, I would not be prepared to interpret the word as indicating anything more than it was obvious to an observer that drawers and cupboards had been opened (and perhaps left open) consistent with the search for money, which was one of the plaintiff's purposes in breaking into the premises.

30The next matter which his Honour took into account was that the plaintiff had made some attempts to secrete a number of the items which he took. I agree with the submission by the plaintiff that such a finding was problematic. The evidence from his mother was that there were rulers with "Fire Brigade" written on them and little packets of coloured pencils in the kitchen. There does not seem to have been any attempt to hide those. The police officers who searched the home had no difficulty in finding a number of Rural Fire rulers in a hallway cabinet. The only evidence concerning the finding of the laptop was that it was located "inside a television cabinet". There was no evidence of a description of the cabinet or of where in the cabinet it was found. I have concluded that it was not open to his Honour to find that the plaintiff had "made some attempts to secrete a number of items which he took".

31The most important evidence from the point of view of the prosecution was the statements made by the plaintiff to CK. His Honour characterised those statements as "boasting about what he has done". The statements do bear that characterisation and it is difficult to see what other purpose RH had in going to the home of CK late at night and telling him about what he had done. That was a finding open to his Honour.

32It is, however, the actual words used by the plaintiff which I consider are of particular significance in determining his state of knowledge. The words were "I got drinks and that here, I got them from the fire station, I broke in there, I was in with all the fire trucks, I was searching looking for money. I found drinks and balloons and rulers. Me and S got 'em". The next day he said to CK "Look at I got, I got them last night, I got them from the fire station in Xxxxxx".

33The plaintiff submitted that the words "I was in with all the fire trucks" was the sort of expression a young and immature person would use. That may be so, but it says nothing about his understanding of whether what he was doing was seriously wrong. On the other hand, the statements "I broke in there"; "I was searching looking for money. I found drinks and balloons and rulers. Me and S got 'em" make it clear that the plaintiff understood that what he was doing was seriously wrong. He was breaking into a fire station with the intention of looking for money and anything else of value. On the basis of that evidence, it was well open to his Honour to find that the plaintiff understood that these were seriously wrongful acts and not acts of mischief.

34When one leaves out his Honour's finding as to the plaintiff's maturity, and when one leaves out the finding that the plaintiff made some effort to hide the items which he stole, was there sufficient evidence to allow his Honour to find beyond reasonable doubt that the plaintiff knew that what he was doing was seriously wrong and was not merely mischievous. In my opinion, there was sufficient evidence and it was open to his Honour to make such a finding. The plaintiff's understanding of "breaking in" with his intention of "searching looking for money" is decisive.

Conclusion

35It follows from the above that the appeal should be dismissed.

36The orders which I make are as follows:

(1) I extend time for the bringing of the appeal pursuant to Pt 51B rule 6 Supreme Court Rules 1970.

(2) I dismiss the appeal.

(3) I make no order as to costs.

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Decision last updated: 10 May 2013