Firth v KG [2018] NTSC 68

Bird v Peach [2006] NTCA 7; (2006) 17 NTLR 230; RP v The Queen [2016] HCA 53; (2016) 259 CLR 641; Semple v Williams (1990) 156 LSJS 40, followed.

Berlyn v Brouskas [2002] VSC 377; (2002) 134 A Crim R 111; Tracy Village Sports and Social Club v Walker [1992] NTSC 91; (1992) 111 FLR 32, referred to.

Local Court (Criminal Procedure) Act (NT) ss 163(3), 163(5)

Respondent: North Australian Aboriginal Justice Agency

Firth v KG [2018] NTSC 68

[1] This is a prosecution appeal against an adjudication of the Youth Justice Court acquitting the respondent of a charge that contrary to s 192(4) of the Criminal Code on 2 March 2017 at Darwin he performed an act of gross indecency on another person without the other person's consent, knowing or being reckless as to the lack of consent.

[2] The respondent is a youth. At the time he committed the act of gross indecency he was 13 years and three months old. As the respondent was under 14 years of age it was necessary for the appellant to prove that the respondent knew his conduct was morally wrong.[1] While the trial Judge found the prosecution had proven all of the elements of s 192(4) of the Criminal Code, his Honour found that the prosecution failed to prove the respondent was doli capax as is required by s 43AQ(3) of the Criminal Code.

[3] Under s 144 of the Youth Justice Act and s 163(3) and (5) of the Local Court (Criminal Procedure) Act, the appeal is confined to a question of law or a question of both fact and law. As the only ground of appeal is - the Local Court Judge erred in finding that the respondent did not know his conduct was wrong (which is a finding of fact) the appellant must satisfy this Court that the finding of fact, or a necessary intermediary finding of fact, was unreasonable and could only be made by an irrational tribunal acting arbitrarily.[2] Otherwise there is no error of law, or error of fact and law.

[4] The ground of appeal pleaded by the appellant does not accurately state the ultimate finding of the trial Judge. His Honour made no such positive finding. He found that the prosecution had failed to rebut the presumption of doli incapax.

On 2 March 2017 at Darwin in the Northern Territory of Australia [KG] in a side alleyway of the Nightcliff Village shops performed an act of gross indecency on another person [...] without the other person's consent, knowing or being reckless as to that person's lack of consent contrary to s 192(4) of the Criminal Code.

[6] Subsection 192(4) of the Criminal Code states:

A person is guilty of an offence if the person performs an act of gross indecency on another person:

(a) without the other person's consent; and

(b) knowing about or being reckless as to the lack of consent.

[7] The elements of the offence are:

1. The person performed an act on another person.
2. The act was grossly indecent.
3. The other person did not consent to the act being performed on them.
4. The person was aware the other person did not consent to the act being performed on them, or the person was reckless as to the other person's lack of consent.

[8] In addition to proving the elements of the offence, under s 43AQ of the Criminal Code, where an accused person is a child aged 10 years or more but under 14 years old the prosecution must prove that the child knows that the conduct is wrong. Section 43AQ of the Criminal Code states:

• (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 his or her conduct is wrong is one fact.

• (3) The burden of proving that a child knows his or her conduct is wrong is on the prosecution.

[9] Section 43AQ of the Criminal Code codifies the common law presumption of doli incapax - it is presumed that a child under the age of 14 years is insufficiently developed, both morally and intellectually, to have the capacity for mens rea. That is, the child is insufficiently developed to appreciate the difference between right and wrong and therefore incapable of bearing criminal responsibility for his or her acts.

[10] The presumption is rebuttable if the child is 10 years or more. To rebut the presumption of doli incapax 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 seriously wrong in a moral sense to engage in the conduct that constitutes the physical elements of the offence.[3] The prosecution may adduce evidence to prove that the child is doli capax. What suffices to rebut the presumption will vary according to the nature of the allegation against the child and the child.[4]

[11] As to what evidence may suffice to rebut the presumption of doli incapax, it is important to note the following statement in the reasons for decision of the plurality in RP v The Queen:[5]

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.

[12] This statement is self-evident. If it were otherwise, there would be some offences of a particular level of seriousness or quality to which the presumption of doli incapax did not apply. That is not the law. Courts have frequently drawn an analogy between cases of doli incapax and cases of mental impairment or insanity, and some horrendous crimes have been committed by adults who have been found not to know the difference between right and wrong because of their mental impairment. The statement of the plurality of members of the High Court does not mean that a trial Judge cannot not take into account any inferences as may be drawn from the circumstances of the offence. However, such inferences must be assessed in the context of the whole of the evidence and, if there is no other evidence, the circumstances must be such that an inference may be drawn beyond reasonable doubt that the child's development is such that he or she knew it was morally wrong to engage in the conduct.

The trial Judge's ultimate findings about the elements of the offence

[13] As to proof of the elements of the offence contrary to s 192(4) of the Criminal Code, the trial Judge made the following findings.

I am satisfied that she was not consenting to the act from the point [KG] turned her and grabbed her hands to the point where she pushed him away. The acts of gross indecency are clearly constituted by the breast fondling and licking, the unwanted kiss, the hand being put down her pants and the vagina area rubbed.

There is no specific evidence of [KG] knowing that [the complainant] was not consenting, but it must have been clear to [KG] that she was not consenting to the involvement of the two boys in lifting her and dropping her to the ground. That, combined with all of the conduct that followed, would certainly constitute recklessness as to the lack of consent.

So as to the act itself I am satisfied beyond a reasonable doubt. As to the issue of consent I am satisfied beyond a reasonable doubt.

[14] There are a number of difficulties with the above reasons. First, in most sexual offence cases where consent is an issue, there is no specific or direct evidence that the accused is aware that the complainant is not consenting. The awareness of the accused's lack of consent is usually inferred from the surrounding circumstances and the conduct of the complainant. In this case the respondent tricked the complainant into coming into the alley way in close proximity to him, placed his arms around her arms so she could not move them, held her so she could not run away and brought her to the ground with the help of a second boy. From these acts along with the complainant's resistance, it may be inferred that the respondent knew the complainant was not consenting. Otherwise, the respondent and the other boy would not have engaged in such acts. Second, it is unreasonable to reason that it must have been clear to the respondent that the complainant was not consenting to being lifted and dropped to the ground without making a similar finding about the respondent's state of mind when he was sexually assaulting the complainant. Third, finding that the respondent was reckless as to the complainant's state of mind is arguably inconsistent with a failure to find the respondent had the capacity to know right from wrong. Recklessness is a relatively subtle state of mind. It involves a level of intellectual and moral development. The person must be aware of a substantial risk that the circumstance (lack of consent) exists or will exist; and having regard to the circumstances known to the person, it is unjustifiable to take the risk. It is the person's subjective awareness of a substantial risk that must be proven. The trial Judge did not find that the respondent did not give a thought to whether or not the complainant was not consenting to the acts of gross indecency.

The trial Judge's ultimate findings about doli incapax

[15] As to whether the appellant had proven that the respondent knew that what he did was wrong the trial Judge made the following findings.

Given the totality of the evidence, or perhaps more properly the limited evidence that I have in relation to this child, [KG's] education and upbringing and the manner in which he might have been made to understand appropriate relationships and sexual conduct, I cannot say that I have been satisfied beyond a reasonable doubt that the Crown has discharged the onus set out in s 43AQ of the Criminal Code.

[16] His Honour's conclusion was largely based on his rejection of significant parts of the evidence of Mr Ian Nussey, a general psychologist, who had interviewed the respondent, prepared two reports about him, and was called as a witness by the prosecution.

[17] As to the limits of the respondent's capacity, Mr Nussey gave the following evidence. He grew up in a noisy, scary, unpredictable and dysregulated environment. He suffers from early life trauma, attachment disorder and FASD. In the environment in which the respondent grew up it is unlikely that anybody would have taught him how to behave in a regulated manner or how to behave properly. The respondent has cognitive impairment with significant impairment of academic achievement, language capacity, attention capacity and executive functioning. His adaptive functioning in the community is also poor. The respondent's academic difficulties are underlined by the fact that in reciting the alphabet he could only get to D.

[18] It is well known that in a number of the areas of impairment referred to by Mr Nussey there is a significant range of impairment. There is other evidence about a number of matters in this case which bare on the extent of the respondent's impairment. He told the complainant that he had stolen a car. If he in fact stole a car that demonstrates a certain level of development of his mental capacity. If he did not steal a car and was simply saying he did to impress the complainant that also demonstrates a certain level of development of mental capacity and maturity. He could competently use an iPhone and select his choice of music. It may be inferred from the cross-examination of the complainant that he told detailed untruths to his lawyer. He manipulated the complainant so she would follow him down a secluded alley way. This involved some forethought. He was able to act in concert with another boy and they quickly formulated a plan to get the complainant on her back. According to the trial Judge, he was capable of having an awareness that there was a substantial risk that the complainant did not consent to him performing an act of gross indecency on her.

[19] Mr Nussey gave evidence to the following effect which arguably supports a conclusion that the respondent knew what he was doing was seriously morally wrong. None of the problems referred to at [17] above took away the respondent's ability to understand right from wrong. The respondent was capable of stating what was appropriate touching and what was inappropriate touching. The respondent was able to articulate that a person needed to obtain consent before a person could touch someone in a sexual manner, and in accordance with Aboriginal custom, a person could not touch women who were in certain relationships to the person. That is, the respondent had developed an understanding of the boundaries of sexual conduct. The respondent understood that what he was doing on 2 March 2017 was wrong. The thrust of Mr Nussey's evidence was that the respondent was highly sexualised and his various impairments impacted on his executive functioning and impulse control, not his understanding of right or wrong.

[20] A difficulty with assessing Mr Nussey's evidence is the very discombobulating manner in which he gave it. He was not helped by the manner in which questions were asked of him by counsel. As the trial Judge found, a further difficulty with his evidence is that it is not easy to determine the precise foundation of his main conclusions about the moral and intellectual development of the respondent. Of course, Mr Nussey's evidence must be examined in the context of the other evidence including the circumstances of the offending. I have done so below.

[21] Having considered all of the evidence, a fair assessment of the circumstances of the offending is as follows.

[22] The complainant met the respondent and his co-accused in the early hours of the morning on 2 March 2017. They met near the Nightcliff Service Station. The complainant was staying at Papaya House, which is supported accommodation, and she had difficulty sleeping. She went to the service station to purchase an iced coffee. After she purchased the iced coffee she sat on a concrete slab nearby. Soon after the complainant sat down the respondent and another boy arrived in a taxi with their two female cousins, who were considerably older than the two boys. The two boys approached the complainant and asked her for a cigarette. She gave them a cigarette each and they started roaming around the service station. They came back and asked her for another cigarette. The complainant gave them another cigarette and the two ladies came out of the service station. She asked the boys who they were. The boys said they were their cousins. The two ladies then went and sat on the concrete near the road. The boys went over and spoke to them for a bit before returning and asking if their cousins could also have a cigarette. So the complainant then went over to their cousins and sat down with them and gave them a cigarette. They were sitting down eating food and drinking a soft drink. They had a laugh and talk for about an hour or so. They then all went for a walk and spent some time at other nearby locations. When they were on the other side of the road in front of the Nightcliff shops the respondent asked the complainant if he could use her phone so he could listen to music on YouTube. During the time they were together they spoke about a number of different topics. For some time things were very convivial. The complainant was sitting next to one of the ladies, VG. The two boys were mainly talking to their cousins. The boys told her they were between 15 and 17 years of age. VG had a conversation with the complainant and told her that the respondent liked her. She was told that the boys wanted to meet her at Casuarina the next day. The complainant laughed in response. She noticed that the boys were trying to impress her. The complainant was also told that the other boy was jealous of the respondent. The complainant did not say anything in reply. She understood that both the boys liked her. They were interested in her. They were telling stories to try and impress her. The boys spoke to her about the kind of music she liked and asked her if she liked the song they were playing. Up to this point in time, and indeed at no stage during the time she spent with the two boys, did the complainant indicate or suggest that she was interested in them and giving them cigarettes and lending them her telephone could not be so construed.

[23] At some point in time, the behaviour of the two boys made her feel uncomfortable. The other boy continued to stare at her and the boys would laugh and stare at her. It made her feel uncomfortable and she said that she needed to go home. However, they all said no, and asked her sit with them until 6 am. So she just sat with them. She knew they were talking about her in their language.

[24] The respondent then got up and walked away with the complainant's phone. She told him that she needed her phone but he continued to walk away. The other boy got up and started following him. The complainant then got up and started following the boys in order to get her phone back. She kept following them and they led her to a secluded alley way. About 10 steps into the alley way the respondent turned around as if to return her phone. The complainant lent out and took her phone and the respondent pushed her left hand and swung her around so that her back was against him. The respondent was facing forward and the complainant's back was against him. The respondent grabbed her hands and placed them on her stomach. He held them there. The other boy was watching what was going on. They were both yelling out in their language. The other boy grabbed her ankles and lifted her up while the respondent held her arms and they dropped her to the ground on her back. They were pretty much doing the same moves as had happened to the complainant before. The respondent was holding her hands on the ground and the other boy had her ankles. She felt her pants being removed. One of the boys got her shirt half off. They were touching her breasts and her legs. The respondent was licking her breasts and kissing them. He was licking the nipples of her breasts. Her pants were off and her bra was lifted up. They tried to get her shirt off but they could not because she was resisting. They tried to get her boxers off and that is when she pushed herself up. After she pushed herself up, the respondent grabbed the back of her head and turned it around and started forcing her to kiss him. He pushed her head into his head and he was trying to kiss her but she did not allow him to kiss her. She was locking her lips. She could feel his lips and his chest. He had one of his legs to her side. He was pushing himself on her and then she felt his hand go down to her vagina. His hand went underneath her boxers and her underpants and the respondent was rubbing her vagina for a bit. That is when she crossed her legs and he removed his hand. She managed to get both her hands free and push the respondent in the middle of his chest. He stumbled backwards and that's when she turned around, grabbed her shorts and ran. The complainant was then able to make her escape. She saw the two boys walk back and join the two ladies. The complainant first ran into the bush where she put her clothes back on. She then went to Planet Tenpin where she called 000. The police arrived at the bowling centre soon after.

[25] As to the complainant's level of resistance the following is a fair assessment of the evidence. She was struggling when her arms were pinned in front of her. The complainant was shocked when the two boys grabbed her and lifted her up and dropped her to the ground. She could not move or scream. She was that scared she could not even think of what was happening to her. She knew what was happening but she just thought it was not real. She did not say anything once they got her on the ground. She was just too scared. She thought if she fought back they would fight her and hurt her even more. However, she was trying to get her arms free. They could not remove her shirt completely because she was resisting. She was just trying to get her hands away so she could push up. But they managed to somehow hold her arms down. When they started trying to remove her boxers that is when she pushed herself up. She was fighting off the boy on top of her. She was ultimately able to push herself up. When the respondent turned her head and tried to kiss her she locked her lips. When the respondent started touching her vagina she crossed her legs. After she crossed her legs she got both her hands and pushed the respondent in the middle of his chest and he stumbled backwards.

[26] I accept Senior Counsel for the appellant's submission that the trial Judge misapprehended the level of the complainant's resistance. He does so in a number of ways. First at page 6 of his Honour's reasons for decision, after referring to the fact that the complainant answered "No" when asked during the Child Forensic Interview if there was any part of the sexual assault upon her for which she gave permission, his Honour states, "It is clear that she gave no positive permission for any of the conduct alleged ..." The fact of the matter is that she gave no permission for any part of the sexual assault on her. The granting of permission is a positive act which may be performed in a number of ways. The complainant gave no permission to the boys to sexually assault her. Nor did she suggest at any stage during the time she was with the two boys that she was sexually interested in either of them. Her evidence was, in effect, that as soon as she sensed that something was amiss she tried to leave. But they kept telling her not to leave and they had her telephone in their possession. Second, his Honour states at the same part of his reasons for decision "that there is at least no clear evidence of any specific overt act of resistance or any spoken words". This statement is also incorrect. Both during the Child Forensic Interview and during her oral evidence in the Youth Justice Court the complainant gave evidence to the effect stated in par [25] above. The complainant did overtly and actively resist the two boys. Her resistance ultimately enabled her to escape and call the police. Thirdly, at page 11 of the reasons for decision his Honour refers to the facts that the complainant crossed her legs and pushed the respondent with both hands causing him to stumble backwards, then states that "[t]his [the push] was the first overt act of resistance and brought the act to an end". This statement is also incorrect. The push was not the first overt act of resistance. The complainant crossing her legs was an overt act of resistance as were each of the other acts of resistance referred to at [25] above. It cannot be contended that because the complainant did not resist the respondent in a sufficiently violent manner it was reasonably possible that the respondent did not appreciate that what he was doing was wrong.

[27] Fourthly, on page 14 and 15 of his Honour's reasons for decision the trial Judge stated the following.

In this case however there had been some considerable interaction between [KG] and the complainant in the early hours of 2 March 2017 involving the sharing of cigarettes and the telephone. There had been an overt expression of interest in the complainant by [KG] through his cousin and this was not met with any obvious refusal. Although in the laneway an amount of force was used by [KG] and Taris, the force was not sufficient to cause injury. The use of the force was not prolonged.

[KG's] conduct was not met with a violent response physically or verbally. Given the background that Mr Nussey referred to of [KG], that is of his upbringing and the experience of this court concerning the regular violence children like [KG] grow up with, the question I have to confront is whether I have sufficient evidence to establish beyond a reasonable doubt that with that background, and in these particular circumstances, [KG] knew that his conduct and the degree of force he used was wrong as a matter of fact.

[28] There was nothing in the considerably lengthy interaction between the respondent and the complainant which could have suggested to him that she was prepared to make herself sexually available to him. The complainant's only response was brief laughter when she was told once, perhaps twice, by VG over a period of a number of hours that the boys liked her and were interested in her. Her evidence was supported by VG. The complainant did absolutely nothing to encourage their interest. She did not flirt with the boys or anything else. Indeed, as I have stated above, when she became aware that something was amiss she tried to leave and was prevented from doing so. The respondent walked off with her telephone. The question is not whether there was an obvious refusal but whether there was any overt conduct, misapprehended or otherwise, which may have suggested the complainant had a reciprocal interest in the respondent. It is irrelevant that the force applied by the two boys did not cause any injury. What is of significance is that the force applied by the respondent in company with the other boy was overwhelming and persistent and did not stop until the complainant managed to escape. Further, it must have been apparent to the respondent that the complainant was scared and was resisting the sexual assault upon her by the two boys. It is irrelevant that her response was not violent.

[29] The question is, what inferences can be drawn from the surrounding circumstances of the respondent's conduct? The respondent's conduct was of the following kind. He was sexually experienced. He was unable to control his sexual desires and impulses. He did not ask the complainant if she would like to engage in sexual relations. He was presented with an opportunity to sexually assault the complainant and he opportunistically took advantage of it. He kept possession of the complainant's phone in circumstances where he had been told by her that she wanted to go home and had asked him to return her telephone. With the use of the complainant's phone and in the company of the other boy, he deliberately, and with forethought, manipulated the complainant and led her away from his two female cousins, who he must have known would object to him sexually assaulting the complainant, and into a secluded alley way where the conduct he intended to engage in was unlikely to be seen. He then drew the complainant in towards him with the use of her phone, immediately overpowered her with the assistance of the other boy and forced himself upon her. Such conduct shows a level of maturity, a level of understanding of human nature, the capacity to construct and implement a plan, and an appreciation of how vulnerable the complainant would be if she could be drawn into a secluded alley way. The obvious inference from such conduct is that he knew it was morally wrong. If he believed the complainant was consenting and that there was nothing wrong with what he wanted to do, he could have simply returned the phone and asked the complainant if she would like to go to a secluded place and engage in sexual intercourse.

[30] The inference that the respondent knew that what he was doing was morally wrong is supported by the evidence that when he returned to his two cousins he simply told them that he kissed the girl, not that he engaged in sexual relations in a similar manner to the actual sexual assault on the complainant.

[31] The inference is further supported by the detailed false instructions the respondent gave his counsel. Counsel for the respondent put the following scenario to the complainant. At some stage the complainant and the respondent left the group and walked over to a green bus shelter and the complainant and the respondent kissed each other at the bus shelter. Then the respondent and the complainant sat down on the ground in the alley way. They kissed and touched each other. The complainant placed her hand on the front of the respondent's shorts. The respondent touched her under her shirt on her stomach and her ribs. When the respondent kissed the complainant he used his tongue. The instructions may be used in a similar way to the way that consciousness of guilt may be inferred from a lie.

[32] By way of contradistinction, the following was not put to the complainant. The respondent said he liked you. He said he was interested in you. You did not say you were not interested in him because he was too young or anything like that. The respondent was teasing you when he walked off with your telephone. You knew you were both heading off to a secluded place where you could engage in sexual relations. He let you grab your phone once you got to the alley way and when you did he hugged you. The other boy came along and they picked you up and gently placed you on the ground. They did not hurt you. After that, the other boy did not have much involvement. You and the respondent then fondled each other. You deny that, but is it possible that he did not think he was doing anything wrong. You only closed your legs and gave him a hard push when he touched your vagina and he stopped as soon as you let him know that was going too far. Could it be the case that prior to you pushing him in the chest he did not think he was doing anything wrong? You did not scream for help or say no to him when he hugged you or placed you on the ground. Could he have got the wrong impression? He is pretty young isn't he?

[33] The only reason the respondent would have given his counsel the false instructions that were put to the complainant is he knew that what he did in the alley way was seriously wrong.

[34] When the respondent was interviewed by Mr Nussey he denied that he engaged in any sexual conduct with the complainant. However, these denials are bare denials. I do not think they can be used as circumstantial evidence to support a conclusion that the respondent knew his conduct was morally wrong. By the time the respondent spoke to Mr Nussey about the charge, which is the subject of this appeal, he had received legal advice and had been told that he did not need to speak to Mr Nussey about the facts of this case.

The trial Judge's assessment of the expert's evidence

[35] The trial Judge made the following criticisms of the psychologist, Mr Nussey's, evidence.

[36] First, as to Mr Nussey's conclusion that the respondent had the capacity to understand right from wrong and knew that what he did on 2 March 2017 was wrong, his Honour stated the following. These conclusions seem to be largely based on the fact that the respondent had committed a prior sexual offence for which he had spent some time in Don Dale. The difficulty with this ground being relied on to support these conclusions was that it was unclear on the evidence whether the respondent thought he was spending time in Don Dale for breach of bail or for committing a sexual offence in circumstances where he faced more than one criminal offence at the time in any event. Further, no evidence was provided to the court about the details of the prior sexual offence and whether it bore any relationship to the current sexual offence.

[37] Second, as to the conclusions that the respondent had developed an understanding of the boundaries of appropriate sexual conduct and can articulate appropriate touching of sexual behaviour and consent these conclusions seemed to be largely supported by two examples of appropriate sexual behaviour in an institutional context. One example, was that the respondent had asked a younger child into his room at Don Dale, or in another institutional setting, on a number of occasions, she had refused and the respondent did nothing to force the issue. Another example was when a staff member praised the respondent for being good at trampolining, the respondent followed her around saying she was his girlfriend. While being apparently confused about the nature of his relationship with that person he did nothing physical to her. In his Honour's opinion the difficulty with relying on these two examples was that they were markedly different to the circumstances between 3 am and 5:30 am on 2 March 2017 and show nothing more than that in an institutional environment the respondent controlled his sexual urges. Whereas in the early morning of 2 March 2017 there had been behaviour of a more intimate nature involving the sharing of cigarettes and the sharing of a telephone over an extended period of time. In those circumstances, the respondent was not able to control his sexual urges.

[38] Third, as to Mr Nussey's reliance on the false denial the respondent made to him about the commission of the instant offence and it demonstrating knowledge of the wrongness of the respondent's conduct, his Honour was of the opinion that all the false denial demonstrated was knowledge after the event.

[39] Fourth, as to Mr Nussey's statement that by taking the telephone the respondent was attempting to create a scenario which allowed for the commission of the offence and this, in effect, demonstrated a consciousness of wrongness, the trial Judge stated that the psychologist never really made it clear what this part of his evidence meant. In the somewhat confused state of this aspect of Mr Nussey's evidence his Honour was unable to use it to satisfy himself that in the circumstances the respondent understood his conduct as required by s 43AQ of the Criminal Code.

[40] While I accept that in a number of instances Mr Nussey's evidence verged on being incoherent, and the manner in which he gave evidence was, from time to time confusing, I do not think that much of his Honour's reasons for not being satisfied by Mr Nussey's evidence can be sustained. As to the first ground of criticism, the better view is that, while there were a number of factors at play, the respondent understood that a factor in his detention or institutionalisation was the first sexual offence he committed and, regardless of the nature of that offence, he must have understood that there were serious consequences for inappropriate sexual behaviour. This is something the respondent must have understood before he committed the instant offence. Further, the two examples Mr Nussey gave of the respondent being able to behave in an appropriate manner were not the only basis of his conclusion that the appellant was capable of understanding right from wrong. Mr Nussey also stated that none of the problems from which the respondent suffered were of a kind that took away the respondent's ability to understand right from wrong, which is often the case. What is often impaired as a result of the conditions the respondent suffers from is the capacity to regulate behaviour and control impulsive behaviour.

[41] As to the first ground of criticism, I accept Senior Counsel for the appellant's submission that Mr Nussey first interviewed the respondent following the first allegations of sexual assault and before his incarceration for the instant offence, when the respondent was a resident at Sabine Road. According to Mr Nussey, the respondent was clearly aware of the sanction of detention in relation to the first sexual allegation. Mr Nussey gave the following evidence:

[KG] is really aware that (inaudible) you know, he was interviewed specifically around that risk and around the sexual offence, the first sexual offence. He - so for [KG] there was - he spoke about, you know, the lady in the first offence is the reason that he is in Don Dale when I spoke to him. So clearly identified that that is a significant part of his thought process from when I interviewed him in Don Dale the second time. So he - at first offence he - I left with a really clear opinion that he believed he'd been in trouble for - even though he said for the first offence - so he articulated that he was in trouble for what is alleged to have done. He denied it, he said he hadn't done anything to the lady. But he knew that he'd be in trouble for what she said he'd done.

Were you aware [...]? -What he is said to have done.

Sorry, were you aware that he articulated that he was in Don Dale because he had breached his bail, that was the reason why was at Don Dale? ...He said that as well, care and he also spoke about the first offence, to me anyway.

But specifically being in Don Dale was because of the breach of the bail rather than the sexual offence? ... Well he denied the sexual offence, he said he hadn't done it, yes.

[42] As to the second ground of criticism, what is important is that during Mr Nussey's discussions with the respondent the respondent was able to articulate what the appropriate sexual boundaries are. The respondent was able to articulate the importance of obtaining consent and did so in circumstances where he also spoke about sexual relationships that were taboo in Aboriginal culture and were well understood to be wrong in that culture. Mr Nussey also gave evidence that the respondent appreciated what parts of the body he could and could not touch. This evidence has to be assessed in the context of how the respondent behaved in the early hours of 2 March 2017 after he formed the intention to engage in non-consensual sexual activities. As I have said the circumstances of the respondent's conduct on 2 March 2017 also demonstrate an understanding that the conduct was wrong. Further, the first example given by Mr Nussey clearly demonstrates a good understanding of the boundaries of appropriate sexual conduct.

[43] As to the second ground of criticism, Mr Nussey gave the following evidence:

He was pretty clear on that. He - he was able to articulate really directly that if a girl would say "fuck' em" then you can. And so, without that, you are not allowed to and that was his. And that was his term. He defined a girlfriend and someone else and he also helped identify a certain group in his home country that were all - that he was allowed to have sex with and not allowed to have sex with. And that's kind of how we spoke about it, yeah, yeah. So, he - he was fairly clear about certain people he couldn't certain people he couldn't and consent around and they - they telling. They telling when you can engage with sexually.

[44] It is clear from the above passage of Mr Nussey's evidence that the respondent understood the importance of obtaining a person's consent before having sexual intercourse with them. His reference to people in his community who he could and could not have sexual relations with clearly incorporates a reference to such relationships as poison cousins; and in Aboriginal communities breaching such a taboo is considered to be very wrong indeed. The fact that the respondent spoke about these kinds of relationships in conjunction with the necessity to obtain consent also indicates that the respondent was of the view that not to obtain consent was wrong.

[45] As to the third ground of criticism, while I do not think it is correct to say that the respondent's denial could only demonstrate knowledge after the event, the denial can be given very little weight for the reasons I have stated at [34] above.

[46] As to the fourth ground of criticism, although the evidence of Mr Nussey is poorly expressed, its meaning is clear. Mr Nussey's conclusion is, in effect, the same conclusion that I have referred to at [29] above. It is simply expressed in a more guarded manner.

Was there an error of law of mixed fact and law?

[47] For this Court to find that there was an error of law or an error of fact and law the Court must find that it was not reasonably open for the trial Judge to have rejected the evidence of Mr Nussey in the context of the whole of the evidence including the circumstances of the performance of the acts of gross indecency and find the appellant had not discharged the burden of proof that the respondent knew that his conduct was wrong. "Reasonably" in this context means no more than a rational tribunal acting according to law as opposed to an irrational tribunal acting arbitrarily.

[48] Significantly, in this case the trial Judge misapprehended significant aspects of the evidence, failed to take into account crucial relevant aspects of the evidence, asked himself the wrong question from time to time, and took into account irrelevant aspects of the evidence. For example, his Honour: misapprehended or mischaracterised the nature and quality of the circumstances surrounding the acts of gross indecency performed by the respondent, and thereby failed to take the evidence about the nature of the surrounding circumstances into account; took into account the fact that the evidence about the complainant giving cigarettes to the respondent and sharing her telephone with him was capable of being construed as demonstrative of a reciprocated sexual interest in the respondent; misapprehended the evidence of Mr Nussey set out at [27]; assumed without any factual foundation that violent sexual conduct was normalised in the respondent's background and therefore concluded that the respondent would not have appreciated that the complaint's resistance meant that his conduct was wrong because it was not violent enough and his Honour did not draw a conclusion that the respondent was aware that the complainant was not consenting to the whole of the sexual assault (as opposed to being reckless as to consent); took into account the fact that the complainant simply laughed and did not positively state she was not interested in the respondent as a basis for the respondent possibly believing that his conduct was not wrong; failed to take into account the evidence of Mr Nussey that the various impairments the respondent suffered (which are set out at [17]) were not impairments which precluded a person knowing right from wrong; failed to take into account the fact that, in addition to the two examples of appropriate behaviour by the respondent, Mr Nussey gave evidence that the respondent clearly articulated his understanding of the importance of obtaining consent and his understanding of consent; failed to take into account Mr Nussey's evidence that the respondent manipulated the circumstances surrounding his offending conduct so as to be able to commit the offence of gross indecency and this demonstrated that the respondent understood his behaviour was wrong; and failed to take into account the false instructions of the respondent that were put to the complainant during cross-examination.

[49] In the circumstances, the trial Judge's conclusion that the prosecution had failed to discharge its burden of proof was so unreasonable as to make his Honour's conclusion irrational and arbitrary.

[50] I would allow the appeal, and set aside the adjudication of the acquittal of the Youth Justice Court.

[2] Peach v Bird [2006] NTSC 14; (2006) 159 A Crim R 416 at [11]-[12], approved by the Court of Appeal in Bird v Peach [2006] NTCA 7; (2006) 17 NTLR 230; Berlyn v Brouskas [2002] VSC 377; (2002) 134 A Crim R 111 at [30]; Tracy Village Sports and Social Club v Walker (1992) 111FLR 32; Semple v Williams (1990) 156 LSJS 40.

[3] RP v The Queen [2016] HCA 53; (2016) 259 CLR 641 at [9] (Kiefel CJ, Bell, Keane and Gordon JJ), [38] (Gageler J).

[4] Ibid at [12] (Kiefel CJ, Bell, Keane and Gordon JJ).

[5] [2016] HCA 53; (2016) 259 CLR 641 at [9] (Kiefel CJ, Bell, Keane and Gordon JJ)., see also at [38] (Gageler J).