R v B [1997] QCA 486

Court of Appeal (Qld)|1997-11-06|Before: Davies JA, Pincus JA, Jersey J

PINCUS JA: The appellant was convicted in the District Court on a single count of having unlawfully assaulted Janelle Elizabeth Gordon. He was at the time of the offence alleged, 18 March 1996, just over 12 years of age; his birth date is 15 February 1984. The Crown case was that the appellant was guilty of assault in that he threatened Ms Gordon with a knife. Three grounds are mentioned in the notice of appeal and of those two have been argued in the outline and only one argued orally. The first ground is that the evidence did not establish an assault because there was "no present ability to effect the accused's purpose", and the second ground is that the evidence was not capable of rebutting the presumption created by s. 29 of the Criminal Code.

"A person ... who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without the other person's consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect the person's purpose, is said to assault that other person, and the act is called an 'assault'."

The outline of argument particularly emphasises the expression "actually or apparently a present ability to effect the person's purpose" and the essence of the point taken is that, on the evidence, the appellant was too far away from Ms Gordon to stab her. There were three witnesses called on behalf of the prosecution at the trial and none for the defence. Two of the witnesses were Ms Gordon, the alleged victim of the assault, and Mrs Barjasic who gave evidence of having witnessed the assault. Ms Gordon was, at the relevant time, acting as principal of a State School of which the appellant was a recently enrolled student. On the day in question, having got some information, Ms Gordon went looking for the appellant; she found him with a knife in his hand which she said had an 11 centimetre blade. When Ms Gordon came on the scene the appellant was, she said, pointing the knife towards children in the vicinity, but as Ms Gordon approached he pointed it towards her. She came towards him, but not right up to him, and tried to persuade him to give the knife up. She said:

"In fact, as soon as I asked for it, he almost lunged forward. You know that stance you get you lunge forward as if you are going to use it. He was aware of the other children and would just constantly go like that."

The next answer was, "Moving around not really moving his feet but more that bringing his body forward." She again asked him to give the knife up and Mrs Barjasic came and did the same.

Ms Gordon told students who were in the vicinity to get out of the way and she herself moved closer. She was asked, "And after you moved closer did he maintain this?" and she answered, "No, he stepped forward which made me stop with the - you know, he stepped forward in the menacing way with the knife." In response to a question from the judge, Ms Gordon said, as I read the record, that after the two of them had moved closer they were about five metres apart. In response to further question from the judge she gave answers from which it appeared that the closest he got to her was about four metres away and that is a point emphasised in the appellant's outline. The knife was eventually given up. Mrs Barjasic gave evidence to the effect that when she saw Ms Gordon and the appellant they were about six metres apart, "he was making threats and gestures so she stopped and he stood still".

Pointing a knife towards a person and making a lunging movement may, depending on the circumstances, convey a threat sufficient for the purposes of section 245 and it is not argued that the evidence was insufficient to satisfy that part of the definition. The question raised by the outline is whether there was actually or apparently a present ability to effect the appellant's purpose. This must be a matter of degree. The word "present" cannot mean that the situation must be such that if the threat were carried out no time, not even an instant, would elapse between the making of the threat and its being carried out. If the appellant had been standing immediately next to Ms Gordon a very small but measurable time would elapse between his deciding to stab her, as opposed to merely threatening her, and the instant when the knife entered Ms Gordon's body. If as Ms Gordon said and the jury were entitled to accept, the distance between the two people was at a minimum four metres, then the appellant could not have stabbed her without moving his feet; but had he chosen to spring at her with the knife he could have stabbed her within a very short time indeed, surely less than a second.

Unless this Court were to hold that threatening a person with a knife does not constitute an assault unless the threatener is close enough to stab without moving his feet, in my opinion the appellant's submission must be rejected. A somewhat analogous situation is a threat with a gun which is loaded and pointed in the general direction of but not directly at another person. The person making the threat, in that situation, has to aim the gun properly to effect a shooting, but the necessity of taking that step would not in itself make his ability to effect his purpose other than a present one.

The second ground is as I have said, that there was insufficient evidence to satisfy the onus placed on the Crown by section 29(2) which, at the relevant time, read as follows:

"A person under the age of 15 years is not criminally responsible for an act or omission, unless it is proved that at the time of doing the act or making the omission the person had the capacity to know that the person ought not to do the act or make the omission."

We were referred to authorities which would if applied, attribute to the subsection which I have quoted a rather different meaning from that which its language appears to convey. For example, reference was made to B v. R (1958) 44 Cr.App.R., an English case, in which speaking of an accused between the ages of 8 and 14 it was said that in order to rebut the presumption in favour of such a child "guilty knowledge must be proved and the evidence to that effect must be clear and beyond all possibility of doubt". It is plain that this is not the law of Queensland. What the Code requires could hardly be more clearly stated: it must be proved that at the relevant time "the person had capacity" (I emphasise capacity) "to know that the person ought not to do the act". This is, of course, different from proving actual knowledge. Authority is hardly needed for that proposition, but if it were needed it is supplied by the case of McGrath (C.A. No. 252 of 1986, judgment delivered 20 November 1986) to which the respondent has referred us. Further, there is no indication in the section that any special burden of proof applies to this issue.

The only question is whether there was sufficient evidence to support the conclusion of which the jury arrived, on the issue. One would expect a child as old as 12 to have the capacity to know that threatening a teacher with a knife is wrong, but this expectation does not affect the existence of the presumption; it only affects the strength of the evidence likely to be necessary to rebut it. In Whitty (1993) 66 A.Crim.R. 462 at 465, Harper J. dealing with the application of a similar presumption in Victoria, as to children between the ages of 10 and 14 years, remarked:

"The authorities are clear that the nearer the child in question is to the age of 14, the less strong need the evidence be if the presumption is to be rebutted. Nothing in this case suggests that the appellant was outside the generality of young persons in this regard."

There was, in my view, ample evidence to support the conclusion arrived at by the jury. It is not necessary to be comprehensive, but I shall mention some aspects. Eventually, as I have mentioned, the appellant gave the knife up and Ms Gordon spoke to him about the incident. She asked the appellant why he brought the knife to school and he said "I was going to use it on my teacher". She went on, "He would get the teacher and if he couldn't use the knife he'd use a gun." She also said that during the period he had been at school, about 2 weeks, she had had to discipline the appellant for non-compliance, swearing, spitting and aggression towards other students. The judge asked the witness whether, before the knife incident, between first speaking to him about his behaviour and last speaking to him about it, she noticed any change in his comprehension of the behaviour. Her answer was:

"I believe so. The sessions I would have with B - I would not let him go until I knew he understood what he did wrong and what was the appropriate action he should have taken. We probably would have had at least - at least - and I'm sure there probably would have been more, at least a half a dozen times we needed to speak."

She then explained in more detail the technique she used with the appellant to achieve her objective. In cross-examination the witness said that the appellant had low literacy and numeracy skills and said, in effect, that his skills were such that it did not seem as if he had a lot of experience at schools and that he did not want to sit at his desk; he did not like to put his mind to a task or put pen to paper. The witness was asked, "[t]he contact you had with him, did it indicate one to one contact was the most successful way of getting through?" and she answered, "I have always thought that was the most successful way of discipline. Yes, with B I did find success with one to one." She thought that each time she saw him they established a good rapport. The witness mentioned that when she spoke to B about what he had done wrong, "He would go on the defensive, sometimes as to why he would do it. Why he did that thing. So obviously he already knew that he had done the wrong thing because immediately went into the defensive". She expressed her opinion that, "in my communication with B that he knew that he had done something wrong."

The picture Ms Gordon painted, then, was of a badly behaved child who needed frequent admonishment but responded to that. As is pointed out on behalf of the appellant, in cross-examination Ms Gordon accepted the possibility that when the appellant acknowledged wrong-doing he did so just to please her. But there is really nothing in her discussion of the boy to lead one to suspect that he was possessed of such an unusually immature moral sense as to be incapable of understanding that it was wrong to threaten a teacher with a knife. In my opinion, on this purely factual point, the jury was quite entitled to reach a conclusion favourable to the Crown: indeed, it would have been pretty odd if they had reached a contrary conclusion.

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