R v RB

District Court of NSW|2022-07-07|Before: Ms J

Judgment

On 7 July 2022 the accused appeared at the Wagga Wagga District Court and was presumed to plead not guilty to one count on an Indictment, which avers that he: Between 24 June 2009 and 15 December 2010 at [town] in the State of New South Wales, did attempt to have sexual intercourse with ZC, a child then under the age of 10 years, namely 6 or 7 years of age, contrary to s 66B of the Crimes Act, 1900.
The date of birth of the accused is XX XXXX 1996. Accordingly, during the timeframe of the count on the indictment the accused was a young person aged between 13 years and 4 months and 14 years and 10 months. The issue that falls for determination at this point of the proceedings is whether the Crown is able to negative doli incapax.
The Crown relies upon documents contained within the voir dire tender bundle admitted as exhibit A at the hearing as well as oral evidence from the mother of the accused. The Crown also relies upon the contents of a legally intercepted and recorded telephone call between the accused and his mother which was had on 1 July 2022. The accused is being held at the Junee Correctional Centre and the call was recorded there.
The accused also relies upon the evidence of the mother of the accused, noting in particular what was said by the plurality in RP v The Queen [2016] HCA 53; 91 ALJR 248 particularly at [36]. However, the accused also relies upon the contents of various medical records tended at the hearing.
At the conclusion of taking evidence on 7 July 2022 the Crown Prosecutor sought the matter be stood over in order to allow time for him to prepare written submissions. The court now has the benefit of comprehensive written submissions from both parties.

Crown Case

What follows is not any finding of facts so far as the ultimate matter is concerned. It is necessary and appropriate however to set out the nature of the allegations against the accused.
The complainant was born on XX XXXX 2003 and accordingly was six or seven years of age during the timeframe pleaded on the indictment. At the time, that is in 2009 and 2010, the mother of the accused conducted a child day care facility at the home at [address in the town]. The complainant was one of the children that attended to receive care at that facility.
It is not apparent from the Crown case statement as to how the timeframe pleaded on the indictment is fixed. However, that is of little consequence so far as this issue is concerned. No issue has been taken by counsel for the accused in respect of the indictment.
The complainant attended a local primary school and went to the home of the mother of the accused for care after school. He recalls being in the bedroom of the accused sitting on a lounge playing on a PlayStation 3 console a game of "Grand Theft Auto - San Andreas". The Crown case statement recites that the bedroom door was both closed and locked.
While engaged in playing the game the accused grabbed one of the complainant's hands and moved it onto his (the accused's) crotch area. The complainant immediately pulled his hand away. The accused pushed the complainant onto his stomach and positioned him on the edge of the lounge on the arm rest area. The accused pulled down the child's shorts and underpants and pushed his erect penis against the complainant's anus in an attempt to commence to have sexual intercourse. The child felt pressure against his anus and yelled, "Ow". The accused hesitated and pulled back.
At about that time the mother of the accused called out to the complainant, told him that his mother was there and to get his things ready. The complainant pulled up his pants and turned around. At the time the complainant saw that the accused was pulling up his own pants and that the erect penis of the accused was exposed. The accused unlocked the door and before opening the door said to the complainant, "I will do it more if you tell anyone". This scared the complainant. The complainant also says that after pulling up his own pants the accused took a can of deodorant that was on the top of the TV cabinet and sprayed that over the body of the complainant from the chest down.
The accused walked the complainant out of the bedroom to where the complainant's mother was in the kitchen talking to the mother of the accused. No disclosure was made by the complainant at that time and the complainant continued to attend the day care until the end of 2011. The complainant refused to go back into the room of the accused.
On 28 March 2020 the complainant disclosed the incident to his mother. Police were notified and commenced an investigation. The accused was spoken to briefly by police on 29 April 2020 and he reserved his right to remain silent.

Children (Criminal Proceedings) Act, 1987

Section 5 of the Children (Criminal Proceedings) Act, 1987 provides that, "It shall be conclusively presumed that no child who is under the age of 10 years can be guilty of an offence". Doli incapax is a creature of the common law.

Some Authorities

Two authorities are of particular assistance in resolving the issue that falls for determination. There is the decision of RP v The Queen (2016) 259 CLR 641; [2016] HCA 53, and the decision of the Court of Criminal Appeal in BC v R [2019] NSWCCA 111.
I will go initially to [32] of RP v The Queen. The plurality, Kiefel J (as her Honour then was), Bell Keane & Gordon JJ said: "The starting point, which the respondent's submission are apt to overlook, is that the appellant is presumed in law to be incapable of bearing criminal responsibility for his acts. The onus was upon the prosecution to adduce evidence to rebut that presumption to the criminal standard."
As the onus is on the prosecution to rebut the presumption to the criminal standard. For more abundant caution, I note and direct myself that the words beyond reasonable doubt are ordinary English words and they are given the ordinary English meaning. The collective legal wisdom developed over the centuries is that further elaboration of those words is neither necessary nor desirable. Suspicion, even the greatest of suspicion, cannot be a substitute for proof beyond reasonable doubt. The standard of proof beyond reasonable doubt is the highest standard of proof known to the law. The onus is on the Crown to rebut the presumption. There is no onus on the accused at all.
Their Honours went on to set out the principles relating to doli incapax at [8]-[9], namely: "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. [9] The age at which a child is capable of bearing criminal responsibility for his or her acts has been raised by statute in New South Wales. Under s 5 of the Children (Criminal Proceedings) Act 1987 (NSW) ("the Act"), there is a conclusive presumption that no child under the age of 10 years can be guilty of an offence. The Act does not otherwise affect the operation of the common law presumption of doli incapax. From the age of 10 years until attaining the age of 14 years, the presumption may be rebutted by evidence that the child knew that it was morally wrong to engage in the conduct that constitutes the physical element or elements of the offence. Knowledge of the moral wrongness of an act or omission is to be distinguished from the child's awareness that his or her conduct is merely naughty or mischievous. This distinction may be captured by stating the requirement in terms of proof that the child knew the conduct was "seriously wrong" or "gravely wrong". No matter how obviously wrong the act or acts constituting the offence may be, the presumption cannot be rebutted merely as an inference from the doing of that act or those acts. To the extent that the decision of the Court of Appeal of the Supreme Court of Victoria in R v ALH suggests a contrary approach, it is wrong. The prosecution must point to evidence from which an inference can be drawn beyond reasonable doubt that the child's development is such that he or she knew that it was morally wrong to engage in the conduct. This directs attention to the child's education and the environment in which the child has been raised."
Their Honours went on to say at [36]: "A statement from the appellant's mother was in evidence in relation to the offence charged in count one, of which the appellant was acquitted. The trial judge did not have regard to that statement in relation to the remaining offences and that ruling was not the subject of contention in the Court of Criminal Appeal. In relation to the offences charged in counts two and three, there was no evidence about the environment in which the appellant had been raised or from which any conclusion could be drawn as to his moral development. The circumstance that at the age of 11 years and six months he was left at home alone in charge of his younger siblings does not so much speak to his asserted maturity as to the inadequacy of the arrangements for the care of the children, including the appellant. No evidence of the appellant's performance at school as an 11-year-old was adduced. In the absence of evidence on these subjects, it was not open to conclude that the appellant, with his intellectual limitations, was proved beyond reasonable doubt to have understood that his conduct, charged in counts two and three, in engaging in sexual intercourse with his younger brother was seriously wrong in a moral sense."
Going to the decision of BC v R, Leeming JA (Ireace J, Hidden JA agreeing) at [49] said: "For the Crown to have rebutted the Doli Incapax presumption, it was necessary for it to prove, beyond reasonable doubt, that the applicant understood that his acts were "seriously wrong" or "gravely wrong" and not merely naughty or mischievous: RP v The Queen at [9]."
His Honour then went on to say at [51]: "In light of the Crown's decision not to produce evidence concerning the applicant's maturity or character, the bare fact of the applicant's age (which itself remained subject to some uncertainty) carries little weight in assessing his understanding of the degree to which his actions transgressed ordinary standards of morality.
In the matter presently under consideration, as I understand the Crown's submission, the Crown relies on what the accused is alleged to have said to the complainant as they were both leaving the bedroom of the accused and the actions of spraying the deodorant over the complainant as going towards rebutting the presumption. These matters are very similar to the issues that confront the court in the decision in BC v R.
Leeming JA went on to say in that decision at [51-[57]: "In light of the Crown's decision not to adduce evidence concerning the applicant's maturity or character, the bare fact of the applicant's age (which itself remains subject to some uncertainty) carries little weight in assessing his understanding of the degree to which his actions transgressed ordinary standards of morality. [52] Turning to the second matter relied upon by the Crown to establish the applicant's understanding of the wrongfulness of his conduct - that when he apprehended being discovered by an adult he said, "quickly stop, stop" - , once again this evidence is not relevantly probative. The issue is whether the applicant knew that his conduct was "naughty or mischievous", as opposed to knowing that his conduct was seriously wrong. This evidence was equally consistent with either state of mind. We respectfully agree with the statement of Hodgson JA in BP v Regina; SW v Regina [2006] NSWCCA 172 at [29]: "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." [53] That leaves the evidence concerning what the applicant said to K about his getting into trouble. We do not think that this evidence was capable of satisfying the jury beyond reasonable doubt that the applicant knew that his conduct was seriously or gravely wrong. We accept the Crown's submission (which was not challenged by the respondent) that the doli incapax presumption may be rebutted by "the circumstances of the offending", without evidence of the accused's contemporaneous character or maturity. An hypothetical example deployed by the Crown to illustrate this point was that where, on the one hand, a 12 year old child steals an iPhone from a teacher at school, those facts alone may be insufficient to prove that the child knew the moral gravity of his act. On the other hand, where a child of the same age makes plans to break into a shop at night and steal 50 iPhones for profit, a jury may well be able to conclude from those circumstances that he understood that his actions were seriously wrong. [54] However, the circumstances relied upon by the Crown in this case were not capable of satisfying that burden. That the applicant took steps to deter K from revealing what had occurred does not go to the critical point, namely, whether the applicant understood that his conduct was seriously or gravely wrong. The measure taken by the applicant - a warning that K would get into trouble, given in the immediate moments after the alleged wrongful act - was not so elaborate or unusual as to reveal much about the applicant's state of mind in relation to the act. Like the direction, "Quickly stop, stop", to avoid detection from an adult, we regard the warning as equivocal in the sense of being equally consistent with an understanding by the applicant that his conduct was merely naughty or mischievous. The equivocal nature of the statement rendered it incapable of satisfying the jury beyond reasonable doubt that it could support the inference that the applicant knew that his behaviour was seriously wrong. [55] Contrary to the Crown's submission, we do not think that much weight can be placed upon K's evidence that the warning was that K (as opposed to the applicant) would get into trouble. This is so for at least two reasons. [56] First, it is not particularly surprising for a child under 14 to appreciate that a warning in those terms might carry more weight for its recipient, and thus be more likely to secure his silence. That it was not directed towards the applicant's own fear of getting in trouble says little, if anything, of his understanding of the degree of moral wrongfulness of the underlying act sought to be concealed. [57] Secondly, we do not consider K's evidence as to the precise words used by the applicant in this exchange to be a sound basis for a finding that the presumption had been rebutted to the criminal standard. We have set out above the manner in which K's evidence on this topic was elicited, in response to leading questions following evidence that nothing about getting into trouble had been said. And it is to be recalled that K was giving evidence of events some 20 years before, when he was a very young child. It may be accepted, as the Crown submitted when these obstacles were raised during the hearing, that particularly shocking or unusual events from one's childhood may leave vivid memories. But considering all those matters together, this evidence is incapable of establishing to the criminal standard that the applicant believed what he was doing was seriously wrong, as opposed to naughty or mischievous."
Mr Mulligan, counsel for the accused, also relied on that part of the decision of RP v The Queen at paragraph [12] (footnotes omitted): "What suffices to rebut the presumption that a child defendant is doli incapax will vary according to the nature of the allegation and the child. A child will more readily understand the seriousness of an act if it concerns values of which he or she has direct personal experience. For example, a child is likely better able to understand control of his or her own possessions and the theft of others' property compared to offences such as damaging public property, fare evading, receiving stolen goods, fraud or forgery. Answers given in the course of a police interview may serve to prove the child possessed the requisite knowledge. In other cases, evidence of the child's progress at school and of the child's home life will be required. It has been said that the closer the child defendant is to the age of 10 the stronger must be the evidence to rebut the presumption. Conversely, the nearer the child is to the age of 14, the less strong need the evidence be to rebut the presumption. The difficulty with these statements is that they are apt to suggest that children mature at a uniform rate. The only presumption which the law makes in the case of child defendants is that those aged under 14 are doli incapax. Rebutting that presumption directs attention to the intellectual and moral development of the particular child. Some 10-year-old children will possess the capacity to understand the serious wrongness of their acts while other children aged very nearly 14 years old will not."
Mr Mulligan at paragraph 13 of his written submissions puts that the true enquiry the court must engage in is whether this accused knew that this offending was morally wrong. Given paragraph [12] of the judgement of the plurality in RP v The Queen extracted immediately above, to my mind this submission is made good. It is also plain that merely because a child is closer to the age of 14 does not mean by that fact alone that the evidence to rebut the presumption will necessarily be less strong.

Evidence of the mother of the accused

The mother of the accused gave evidence on 7 July 2022. She was advised (page 6 Transcript) that she was, pursuant to s 18 of the Evidence Act, 1995, able to object to giving evidence against her son. She did not wish to take that objection and said that she was happy to give evidence.
The accused's mother was not asked the date of birth of the accused, however that does not seem to be an issue. She has two children, namely the accused and a daughter. They lived at an address in [street in the town]. She said (see generally pages 6 and 7, transcript) that when the accused was about six years of age he asked what was described as "a sexual question". She said that she answered him as best as she could she went on to say that they also talked about "the birds and the bees" but she was unable to recall detail. It is hardly surprising given that would have been approximately 20 years ago. She was of the opinion that the conversation would have included a discussion of parts of the human anatomy. She went on to say that when the accused was about nine they had a discussion about what he would be learning in sex education classes at school. She agreed that this was in the nature of giving her son, "a heads up as it were". She explained that she imposed the usual type of domestic discipline on the accused and his sister.
The evidence continued that she remembered that the school the accused attended had a sex education program and that she remembered signing a permission note for him to participate in that class. When asked (p 9:34), "Was it brought to your attention when you signed the permission slip what the education course would involve, the sex education course?" The answer is recorded as, "Not in detail of course no".
The accused also participated in sex education classes during high school. She remembered signing another permission note for that.
At p 12:16ff the following exchange occurred between the Crown Prosecutor and the mother of the accused: "Q. You gave evidence about the various conversations that you had particularly with [accused] explaining to him certain things in relation to matters pertaining to sex. How did he appear to respond to those do you recall?" A. Like any other child would you know like [accused's sister] did when she offered that kind of information and it's just normal you know like just having a conversation with another person. He was a very mature you know he seems to understand everything that I was saying from a very young age so." Q. And that maturity that continued throughout your conversations? A. Yeah as far as I could feel yeah."
The bulk of the cross-examination conducted by Mr Mulligan for the accused appears to have been directed at what was said by the plurality in the decision of RP v The Queen going to issues of the background and experiences of the accused.
The accused was born as a result of what was described as a casual relationship. The accused's father has not been in his life since he was a young child. The accused was essentially raised by his mother as a single parent.
There was a volume of cross examination going to the ingestion by the accused of a quantity of alcohol when he was an infant, aged about one year seven months. The mother of the accused had been to a soccer presentation night. There was something of an after party at the accused grandmother's home. A number of people at that after party were drinking cans of rum and cola. Some of the people attending, after a can had been emptied, would put a bit of water into that can and give it to the accused so he felt like he was joining in. However after people had gone to sleep the accused found a number of cans which had some of the alcoholic drink remaining in them and consumed them. His mother estimates that in total he would have had about a full can.
The accused was taken to the local hospital. Exhibit 1 is the hospital records relating to this occurrence. Despite the hospital notes indicating that the accused was unresponsive the accused's mother maintained that was not the case. She admitted that on the night in question she was well affected by alcohol.
Exhibit 2 at the hearing is further hospital notes relating to an incident in 1998. That document has a notation to the effect that the mother of the accused had strangled and punched the child resulting in some bruising. The accused's mother said (p 23) that she took [the accused] to the doctor because she needed help, she was feeling quite depressed. She slapped [the accused] across the face. She denied the other matters set out in the hospital notes. She was shown the hospital notes but maintained her denials of punching her son.
Further there was an incident on 23 April 2003 where the accused ingested the vapour of a water repellent in an aerosol can. The evidence continued that when [the accused] was about seven he was ingesting the contents of aerosol cans frequently. Ingesting referred to inhaling the vapours. The medical records relating to this incident are exhibit 4. The accused's mother upon finding out that her son was inhaling the contents of aerosol cans, took his spray deodorant from him and locked cupboards in order to prevent him from having access to those cans. Exhibit 3 relates to an incident in 2006 where the accused had inhaled aerosol insecticide.
There is a note in the medical records (see pages 26 - 27 transcript) to the effect that the accused had been inhaling the vapours of aerosol cans "on and off for years". The mother of the accused said there was no consistency. She went on to explain (p 27:13) what she meant by there being no consistency in that that conduct might have been occurring for three years but it was only every now and then that she would catch him doing it. She did not know when that conduct ceased. The complainant's mother was also asked about the accused sniffing petrol. She denied that that had occurred.
Further, the mother of the accused was also asked about the accused suffering from depression. She said that he had been to counselling but that he was never medicated for depression.
Later in the cross-examination the mother of the accused confirmed that although the accused attended sex education lessons at school she did not know the extent of all the contents of those lessons.
There was further cross-examination of the mother of the accused. It was put to her (p 36:49ff) that in 2009 and 2010 the accused did not have access to spray-on deodorant. She maintained that she did not purchase spray-on deodorant for him. She went on to say that he may have got it elsewhere but she did not buy it for him. She conceded spray-on deodorant may have been in the bedroom but she did not know one way or the other.

Evidence of Detective Sgt Keating

Detective Sergeant Keating, the officer in charge of the case also gave evidence. It is apparent from that evidence that no inquiry was made at the [town] public school. That may well be because at the time of the allegation the accused would have been in secondary school. However, the fact remains that there is no evidence of the participation by the accused in sex education lessons in primary school.
However, the officer did make some inquiries at the [town] High School. The following appears commencing at p.45:43: Q. Now it's the case isn't it that you sent some email enquiries to [town] High School in June of 2020, that's correct isn't it? A. Yes Q. And specifically you requested school records or information from any staff member regarding (accused) specifically relating to sex education programs or being reprimanded for anything of a sexual nature whilst at [town] High School? A. Yes Q. And its true isn't it that you were informed by the principal of that high school on the 9th June 2020 that they don't have any specific mention of a sexual program? A. That's correct. Q. And its correct isn't that there were no records of the accused ever being reprimanded for misbehaviour of a sexual nature? A. That's correct. Q. And it's the case isn't it that you made no further enquiries as to what was specifically was taught from that syllabus to each specific year, being years 7,8,9, and 10? A. The - that's correct, the height of the information I was provided is that was the program running during those time frames. I was unable to obtain attendance sheets or the like and if they existed I would have sought them. Q. And you did obtain any details of for example teachers who taught (the accused)? A. Correct.
The officer was re-examined as to why he did not obtain statements from the teachers that taught the accused. The officer said that the fact that there were no records of any adverse interactions that were relevant to the investigation he took it that the teachers would not have "had anything of relevance to provide the investigation".

Submissions

The Crown submits that in the matter presently under consideration the presumption of doli incapax has been rebutted and in this regard the Crown relies on the evidence relating to the age and maturity of the accused, the circumstances surrounding the act that gives rise to the charge before the court and the home background and school life of the accused.
In the written submissions, MFI 3, the Crown accurately summarises the allegation against the accused. The Crown submits that the court would find that at the relevant time the accused was morally and intellectually developed for his age particularly in relation to the issue of sexual behaviour. The Crown relies on the evidence of the mother of the accused in this regard.
In particular, the Crown relies upon the evidence of the mother (p. 12:16) that she had a conversation with the accused when he was about six years of age about "the birds and the bees". The mother of the accused went on to say, "He was very mature you know he seemed to understand everything that I was saying from a very young age so." The Crown Prosecutor then asked, "And that maturity continued throughout your conversations?" The mother of the accused replied, "Yeah as far as I could feel yeah".
The mother of the accused also gave evidence under cross-examination to the effect that she could not specifically recall what she spoke to the accused about. She said, "Not exactly but you know there was a little bit of talk about sex and sexual organs and what's appropriate and what is not appropriate, age, there was also you know I know that we discussed siblings." When asked whether she spoke to him in a way appropriate for a six-year-old she said that she probably spoke to him as an older person.
The Crown submits that starting from the age of six the accused was provided with parental guidance regarding the context of sexual behaviour and what was appropriate and what was not appropriate. Further the accused presented as being "very mature" and appeared to his mother to understand what she was saying about sexual behaviour. Further the maturity and insight of the accused continued in the conversations between the accused and his mother as the accused got older.
Mr Mulligan on behalf of the accused correctly submits that there is no evidence of the precise words used or the specific topics discussed beyond general terms. This is not to be seen as a criticism of the mother of the accused or either party, but in reality is a product of the effluxion of time. Mr Mulligan's submission that the expression "birds and the bees" suggests that she spoke to the accused about sexual matters in language to suit the maturity and comprehension of the child has some real force.
The mother of the accused gave evidence of signing permission slips for the accused to attend sex education classes at school". However, there is no evidence as to precisely what was taught in these classes either at primary school or secondary school. Likewise, there is no evidence from any teachers that taught those subjects. It occurs to me that even if the relevant teachers could not be located it would not have been particularly difficult to obtain records from the Department of Education as to the syllabus of those subjects both in primary and secondary school. The schools the accused attended were mainstream public schools and would have taught a state-wide curriculum.
However, I note the evidence of Det Sgt Keating that his inquiries revealed that there was no specific mention of a sexual programme, which I take to mean sex education classes.
Further, there is no evidence that the accused actually attended those classes if in fact there were such classes conducted. I have presided over a number of trials involving allegations of child sexual assault where school attendance records are placed into evidence for one reason or another. Again I note the evidence of Det Sgt Keating.
So far as the level of maturity of the accused is concerned the only evidence on that issue is the evidence of the mother of the accused. She was 19 years of age when she gave birth to the accused, and it would seem that she herself may have had a level of immaturity. She certainly had her own issues when the accused was an infant. I will deal with this issue in greater detail when dealing with the issue relating to the medical records.
However, the fact remains that when analysed the only evidence that the court has as to the level of maturity of the accused is the subjective opinion of the mother of the accused. In the circumstances I do not find that subjective opinion in any way persuasive.
I now turn to the issue of the second issue relied upon by the Crown, namely the circumstances surrounding the event. It seems plain from the authorities which I have extracted above earlier in these reasons that it is simply not possible to infer rebuttal of the presumption of doli incapax from the acts themselves. In the matter presently under consideration the Crown places great weight on the use of the deodorant can and also the threat allegedly made by the accused immediately after the alleged act.
The Crown submits that the alleged conduct of the accused and spraying the deodorant was conduct, "of a sophisticated nature in which he foreshadows that his sexual activity with the complainant might give off a distinctive bodily odour which could readily be discerned or detected by his mother or the mother of the complainant, either on himself or the complainant.". The submission continues that that conduct showed foresight or awareness that is more characteristic of someone who appreciates the moral wrongness of directions rather than being the actions of a naughty or mischievous child.
Mr Mulligan submits that the actions and spraying the deodorant were neither elaborate nor unusual. The submission continued that the spraying of the deodorant was rudimentary and equally consistent with an understanding that the actions were merely naughty or mischievous. Further demonstrative of the rudimentary nature of the act is the allegation relating to an attempted sexual assault which lasted for a very short period of time and therefore unlikely to generate any distinctive odour. Further that the spraying of the deodorant was more likely to generate attention than conceal detection, presumably the deodorant being unfamiliar to the complainant's mother and the accused was not permitted aerosol deodorant at the time.
Having considered this matter at some length I prefer the submissions made on behalf of the accused. In particular the submission that the deodorant was more likely to generate detection than to conceal detection has some real force. There was a volume of evidence from the mother of accused to the effect that she had issues with the accused sniffing the vapours of aerosol deodorant and at the relevant time the accused was not permitted to have aerosol deodorant in his room. Given the issues that the mother of the accused had experienced in this regard it seems to me highly likely that had the mother of the accused smelt or detected the spray on deodorant it is something that would have excited her attention and suspicions. Further in this regard I note the evidence of the mother of the accused (p 37) that in 2009 and 2010 she had no memory of seeing spray deodorant in the house.
It is the Crown case that immediately after the act the accused said to the complainant, "I will do it more if you tell anyone". I agree with the Crown's submission that the use of the word "more" must relate to the sexual activity.
The Crown in the written submissions sets out the threat that was considered by the court in BC v R, namely, "I am going to go now but you can't tell anyone what just happened" or the complainant would get into trouble. The Crown submits that the threat made to the complainant in the matter presently under consideration falls well outside the type of circumstance considered by the court in BC v R.
The Crown then goes on to make submissions to the effect that the threat allegedly uttered by the accused is closely factual analogous to the circumstances considered by the Court of Appeal of Queensland in R v JJ; Ex parte Attorney General (Qld) [2005] QCA 153. That matter involved an allegation of sexual misconduct by the accused in respect of his sister. The accused is alleged to have said to the complainant in that matter not to tell mum and dad or he would hurt her. That evidence was not contradicted and was taken to have been sufficient to satisfy a jury that the accused had the capacity to know he ought not to rape his sister.
The decision of the Queensland Court of Appeal in R v JJ; Ex parte Attorney General (Qld) was a Crown appeal on inadequacy of sentence where the issue of the capacity of the young offender came for consideration. McPherson JA (Williams JA agreeing, Jerrard JA agreeing with additional comments) said at [9]: "There was, in any event, ample evidence on which the jury could make the necessary finding. It included the surrounding circumstances including conduct closely associated with the act: see R v F, ex p Attorney-General [1998] QCA 97; [1999] 2 Qd R 157, 162. The question, as Pincus JA observed in R v B [1997] QCA 486, at 5-6, and as is evident from s 29(2) itself, is not whether the accused knew he was doing wrong, but whether he had the capacity to know he ought not to do the act in question. Here his own sister, according to her evidence, told JJ that she was too young for it and, he being her brother, "you don't do that to me". His response was that "he could do this", and after the event "Don't tell Mum or Dad, or I'll hurt you". Uncontradicted, the evidence was sufficient to satisfy the jury that he had the capacity to know he ought not to rape her. It was not suggested that JJ was intellectually impaired and, indeed, the jury were in a position to form their own impressions from having seen him giving evidence in the witness box even if many years after the event."
Mr Mulligan on behalf the accused submits, relying upon the decision of the High Court in RP v The Queen, that the probative value flows from conduct which is unequivocal as to the awareness of an accused that conduct is morally wrong as opposed to being merely naughty or mischievous. Counsel for the accused submits that the alleged threat does not reveal anything about the accused's state of mind. Further, as I understand the submission, the alleged threat is equally consistent with the accused being aware that his conduct was naughty or mischievous as opposed to being morally wrong.
Counsel for the accused goes on to submit that the Queensland authority relied upon by the Crown cannot be used in support of the Crown's argument as that decision related to s 29 of the Criminal Code Act, 1899 (Qld) which contains an entirely different test to that at the common law which applies in New South Wales. The test contained within the Queensland legislation relates to an accused person's capacity to know that the person ought not to do the act will make the omission.
Mr Mulligan goes on to cite the decision of Rye v Western Australia [2021] WASCA 43 where at [43]-[44] the court explained the distinction between the code states and the common law as being, "not whether the accused knew he was doing wrong, but whether he had the capacity to know he ought not to do the act in question".
Rye v Western Australia was a successful conviction appeal relating to alleged historical (circa 1973) offending. The appellant was "about 13" years of age at the time of the alleged offending. Buss P and Mazza JA (Vaughan JA agreeing with additional comments) said (footnotes omitted) at [43]-[44]: "In R v JJ; Ex parte Attorney-General (Qld), McPherson JA (Williams JA agreeing and Jerrard JA relevantly agreeing) referred with approval to Pincus JA's observation in R v B that the question under the relevant part of the Queensland equivalent of s 29 'is not whether the accused knew he was doing wrong, but whether he had the capacity to know he ought not to do the act in question'. See also, to similar effect, the comments of McMurdo J (Holmes JA and Applegarth J agreeing) in R v EI and those of Keane JA (Chesterman JA and Wilson J agreeing) in R v TT. [44] In our opinion, it is plain, from the text of s 29 of the Code, that a child who is aged at least 10 years but less than 14 years will not be criminally responsible for an act or omission unless the prosecution proves beyond reasonable doubt that at the time the child did the act or made the omission the child had 'capacity to know' that he or she ought not to do the act or make the omission. In particular, that part of s 29 is concerned with the child's capacity to know as distinct from the child's actual knowledge. Our opinion on this issue is supported by the preponderance of the appellate decisions in Queensland to which we have referred."
It is clear from what I have set out above that the test that was being considered by the Court in the authority relied upon by the Crown is a different test to the common law. The test that applies in New South Wales is the common law. In those circumstances I agree with the submission by counsel for the accused that the Crown cannot rely on that authority in support of its submission.
The third limb on which the Crown relies is the home and school life of the accused. The Crown submits that the mother of the accused provided both of her children, including the accused, with clear parental guidance in understanding the difference between acceptable and an acceptable behaviour. The submissions continued that both children were disciplined if they did anything wrong and they would be punished usually by taking something from them or "grounding". The mother of the accused went on to explain that she used "the naughty chair" and she always tried to teach them the right way. The Crown submits that the evidence of the mother of the accused was that she adopted a didactic style of parenting, not only punishing wrongdoing but additionally educating the accused as to the right way.
In support of this submission the Crown relied upon the evidence of the mother of the accused at p 9:38ff. That evidence included that the accused was disciplined after he set a small grass fire to the side of the house and he was about six years of age, that he would get disciplined for stealing money and back chatting. The stealing of money related to only small amounts e.g. $2 or something like that.
The evidence continued that she had a conversation with the accused as to where conduct such as stealing money could lead, including that the police could be involved and he could get into a lot of trouble with the police. She said that those conversations with the accused continued over the years and her memory was that the last time she disciplined him was when he was about 16 years of age.
Mr Mulligan, counsel for the accused, introduced into evidence a volume of hospital and other medical records relating to the accused. That evidence has been summarised earlier in these reasons. Counsel for the accused maintains the material is evidence of "parental neglect" and violence in the home environment. The mother of the accused in her evidence under cross examination seemed to take issue with some of the contents of some of the records. In this regard however I agree with the submission of counsel for the accused that where there is any inconsistency between the medical records and the evidence of the mother of the accused, I should prefer the medical records. Essentially this is because those records were records made contemporaneously by treating health professionals whereas mother of the accused is relying on memory.
The various issues raised in the evidence of the mother of the accused relating to those medical records in my view must cast some real doubt on the subjective opinion of the mother of the accused as to the level of maturity of the accused.
Counsel for the accused maintains that the submissions he makes are not to criticise or commend the mothering skills of the mother of the accused. While I accept that that is the intention of counsel nevertheless there is obvious criticism of the parenting skills of the mother of the accused.
The issue of the home life and upbringing in the submissions of counsel for the accused is relevant to the issue presently under consideration in that when examining the background of the accused there are a number of troubling aspects (see [44] written submissions). Further the submission was that the focus should remain on the accused both as to the circumstances in which he was raised and in regards to his state of mind at the time of the relevant allegations.
As I understand the submission it seems to me that what counsel for the accused is submitting is analogous to the principles enunciated by the High Court of Australia in Bugmy v The Queen [2013] HCA 37 going to the issue of moral culpability of an offender in sentence proceedings. To my mind what counsel is submitting is that those issues relating to the background and home life of the accused are such that at the time of the allegation the accused would have a blurred or even confused understanding of what was and was not morally wrong. In light of what appears at [36] in the judgment of the plurality in RP v The Queen this is a valid submission, which in the case presently under consideration has some force. This issue however is not determinative of the issue that I am deciding.
Exhibit 1 relates to the presentation of the accused at the hospital after he had ingested alcohol at an after-party. Clearly the mother of the accused was intoxicated at the time of that event. Clearly, given the age the accused would have been at the time, it was inappropriate for him to have even been at the party and he should have been in bed.
The Crown correctly submits that this is not an instance of the mother of the accused willingly or deliberately providing alcohol to a child. Further the Crown submits that upon discovering that the accused had in fact consumed the alcohol she immediately took proactive steps in order to protect him by taking him to the hospital. I agree with those submissions however, it begs the question as to what the accused was doing at the party in the first place.
The Crown also submits that it was an isolated incident. I agree with that submission. Mr Mulligan on behalf of the accused submits that whilst it is correct that no further evidence was led regarding similar incidents, "the absence of other evidence of similar occasions is not evidence of an absence of other occasions." That submission has some superficial appeal, however, it is entirely inappropriate to speculate on the absence of any evidence.
Again, for the reasons already given, where there is any conflict between the records and evidence of the mother of the accused I accept the records. Clearly the accused was subject to some degree of violence in his childhood. Clearly those incidents of violence does cause the court to have concerns about the level of care provided in the home of the accused and the childhood of the accused.
The medical records also reveal that the mother of the accused suffered from depression during the childhood of the accused. Whilst not being critical of the mother of the accused, that also adds to the concern so far as the quality of care of the accused. Potentially this may also raise concerns about the accuracy of the mother's recollections of events.
On this issue of violence within the household the Crown relies upon exhibit B, which is a recording of a lawfully intercepted telephone call between the accused and his mother on 1 July 2022. The accused was in custody at the Junee Correctional Centre and as is common with all telephone calls from correctional centres, makers and receivers of calls are routinely advised that the conversation will be recorded and may be monitored.
The accused and his mother discussed the hearing that at that stage was listed to be on 7 July 2022. The following appears at page 3 of the transcript: Accused: Yeah, well he said something strange - we had a meeting with the other week, said something strange I don't know where it came from - so, I shut him down about it, you never strangled me or hit me before - I just don't know - Mother: Me? A. Where that came from - yeah M: What? A. Yes - that's why I wanted to talk to you about it - because I don't speak to them enough really to go through what they've got - M. Oh my God - why is this coming back on me? A: I don't know - cause I don't know, my best interests or something but I shut that down immediately -
The Crown submits that this is particularly critical evidence in that there is direct evidence from the accused (from his perspective) that his upbringing was devoid of physical violence. I am not persuaded that that is the only interpretation that can be placed on that exchange. It occurs to me that it is equally consistent with the accused telling his mother simply that he shut down the conversation, i.e. the literal interpretation of what appears in the transcript. The fact remains that the medical records indicate there was some violence. There is no reason on the evidence before me to doubt the veracity of those records.
It is plain from the medical records that during his childhood the accused did ingest or inhale the vapours from aerosol cans including deodorant. One of the entries relates to the accused being disoriented at the time he attended the hospital.
Returning to the evidence of the mother of the accused on this issue, it seems that she became aware of her son's habit of inhaling the vapours of aerosol cans in April 2003. In the weeks leading up to that particular incident involving water repellent, she had found empty aerosol cans around the house. It was something about which she sought counselling and she did not allow him to have aerosol cans for a while (see pages 25 - 26). The evidence continued that she spoke to her son about this habit and he said that he learned it from another child at school. She could not recall when the behaviour started but he was quite young (page 27).
I agree with the submission of the Crown that the mother of the accused responded in a proactive and supportive way when she found out about the habit in which her son was engaging. The habit of the accused of inhaling vapours from aerosol cans is one of the reasons that led to the mother of the accused taking the accused to see a psychologist.
Ultimately, without being critical of the parenting skills of the mother of the accused, for the purpose of determining the matter that I need to determine, I am of the opinion that there are issues relating to the home life and upbringing of the accused that causes concern so far as the ability of the accused at the relevant time to clearly distinguish what was something merely naughty or mischievous as opposed to being morally wrong. In this regard I note what I said earlier at [73] of these reasons.
Mr Mulligan on behalf of the accused seeks a direction conformably with the decision of the High Court in Mahmood v Western Australia (2008) 232 CLR 397 at [27] relating to the Crown not calling evidence of or at least having made appropriate inquiries relating to the school attendance record of the accused, evidence from teachers, and evidence from other family members.
Earlier in these reasons I set out in some detail the evidence of Det Sgt Keating, the officer in charge of the case. The fact remains that for whatever reason there was no evidence put before the court as to the attendance of the accused at the sex education lessons or for that matter what the syllabus for those lessons contained. I do not see that it is necessary to give the direction that is sought by counsel for the accused. The fact remains there is no evidence of those matters, and the absence of that evidence is something that is taken into account in making the determination, noting that the onus is on the Crown to negative the presumption beyond reasonable doubt.
Counsel for the accused also submits that it is appropriate to give myself a warning conformably with the decision of Longman v The Queen [1989] HCA 60. Essentially, as I understand it, the submission is that the accused is at a significant forensic disadvantage in confronting evidence relating to the issue that falls for determination given the elapse of time since the alleged conduct is said to have occurred. As I have made plain, doli incapax is something that the Crown must rebut beyond reasonable doubt. Any uncertainty or any defect or absence or lack of evidence arising from the delay must mean that it is more difficult for the Crown to rebut the presumption. I declined to give myself the direction that he sought in this regard.

Conclusions

For the reasons already given, but particularly my reservations about the evidence of the mother of the accused, I am not persuaded that the accused was necessarily mature for his age.
There is evidence of the accused attending sex education classes both in primary and secondary school. However, there is no evidence as to the syllabus or content taught in those classes or lessons and there is no evidence of the attendance of the accused at those classes beyond the mother of the accused saying that she signed the necessary permission slips. The evidence of Det Sgt Keating suggests that the classes may well not have been conducted at the [town] high school.
It may well be that the absence of this material is because of the effluxion of time. Given the time since the alleged conduct to which this matter relates is said to have occurred it is understandable that the records would be difficult to obtain. However, the fact remains there are no such records in evidence.
I am not persuaded that the surrounding circumstances of the alleged conduct assists the Crown in rebutting the presumption. For reasons given earlier in these reasons I do not see the spraying of the deodorant as the "smoking gun" that the Crown submits that it is. Likewise, the alleged threat to have been made by the accused to my mind is equally consistent with the accused being aware that the alleged conduct was merely naughty or mischievous as opposed to being morally wrong.
There are real issues so far as the upbringing and home life of the accused are concerned. I accept those issues had the potential for the accused to be confused about where boundaries lay and make it more difficult for him to discern the difference between something that is merely naughty or mischievous as opposed to being something that is morally wrong.
I was favoured with receipt of a volume of material before the hearing on 7 July 2022. On reading that material I formed the preliminary view the Crown would be able to rebut the presumption. However, having heard the oral evidence and having considered the volume of documentary evidence produced at the hearing I am now firmly of the opinion that the Crown has failed to rebut the presumption to the criminal standard of beyond reasonable doubt.

Finding/order

I find for these reasons the Crown has failed to rebut the presumption of doli incapax beyond reasonable doubt.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 November 2022

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