AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 30 November 1999

R v LMW

[1999] NSWSC 1343

Homicide
CRIMINAL LAW JUVENILE ACCUSED LEGAL CAPACITY

Citation: R v LMW [1999] NSWSC 1343
Court: Supreme Court of New South Wales (Criminal Division)
Date: 30 November 1999
Judge(s): Studdert J

Background

The accused, LMW, was ten years and approximately three months old at the time of the alleged offence. The Crown alleged that his acts caused the drowning of the deceased. Given his age, the proceedings engaged the common law doctrine of doli incapax, which presumes that a child between the ages of ten and fourteen lacks the capacity to commit a crime.

At the close of the Crown case, counsel for the accused applied for a direction that the jury acquit LMW. The basis of the application was that the Crown had failed to rebut the presumption of doli incapax to the criminal standard of proof.

Studdert J refused the application and published reasons explaining why sufficient evidence existed to leave the capacity question to the jury.

  • Whether the Crown had adduced sufficient evidence to rebut the presumption of doli incapax beyond the mere proof of the act alleged
  • Whether the question of rebutting doli incapax was a matter for the trial judge alone, or whether it was properly a question for the jury
  • Whether the NSW Court of Criminal Appeal's decision in R v CRH established that the jury has no role in determining whether the presumption has been rebutted

Decision

Studdert J confirmed the governing principle, drawn from Lord Lowry's judgment in C v Director of Public Prosecutions [1996] 1 AC 1, that the Crown must prove to the criminal standard that a child defendant knew the act in question was seriously wrong, not merely naughty or mischievous. Proof of the act itself is insufficient to rebut the presumption, however obviously wrong the act may appear.

On the procedural question, Studdert J rejected the submission that R v CRH placed the doli incapax question beyond the jury's consideration entirely. His Honour read CRH as a case where there simply was no evidence available upon which a jury could act to find the presumption rebutted. The Court of Criminal Appeal in CRH did not state as a matter of principle that the jury has no role where such evidence does exist.

Studdert J identified a body of evidence that, on his assessment, was capable of supporting a jury finding that the presumption had been rebutted. That evidence included: the accused's conduct in fleeing the scene; statements made by the accused to police, in particular a denial that he had pushed the deceased; evidence from two teachers about the accused's behaviour and understanding of school rules; and evidence from a child psychiatrist, Dr Wotton. Dr Wotton expressed the view that the accused probably understood the difference between right and wrong in his home and school settings, and that the accused's act of leaving the scene was consistent with an awareness of serious wrongdoing, rather than mere failure to understand consequences.

Because the evidence crossed the threshold at which it could support a jury finding on the capacity question, Studdert J held it was not appropriate for him to resolve the matter himself. The application was refused and the trial continued.

Orders Made

No orders were made in this decision. The judgment disposed of a mid-trial application and directed that the trial proceed.

Key Takeaways

  • The presumption of doli incapax requires the Crown to prove, to the criminal standard, that a child aged ten to fourteen knew the act was seriously wrong, not merely naughty; proof of the act alone cannot rebut the presumption.
  • Sufficient evidence of a child's capacity to know an act was seriously wrong properly falls to the jury to assess, rather than being resolved by the trial judge as a matter of law.
  • R v CRH (NSWCCA) did not establish a principle that the jury has no role in doli incapax determinations; the Supreme Court read that decision as turning on the absence of any evidence capable of rebutting the presumption on the facts of that case.
  • Relevant evidence capable of rebutting the presumption may include the child's conduct before and after the act, statements made to police, evidence from teachers or others who know the child well, and expert psychiatric opinion, though flight from a scene remains generally equivocal.
  • Where evidence exists that could support a finding of rebuttal, the trial judge should leave the issue to the jury rather than withdraw it from their consideration.

Legislation and Cases Referenced

Cases Cited:
- C v Director of Public Prosecutions [1996] 1 AC 1
- A v Director of Public Prosecutions [1997] 1 Cr App R 27
- CC v Director of Public Prosecutions [1996] 1 Cr App R 375
- L v Director of Public Prosecutions [1996] 2 Cr App R 501
- Re F (a child) (1998) 101 A Crim R 113
- DK v Rooney & Anor (unreported, McInerney J, 3 July 1996)
- R v CRH (unreported, NSWCCA, 18 December 1996)
- R v Gorrie (1918) 83 JP 136
- The Queen v M (1977) 16 SASR 589
- The King v Brooks [1945] NZLR 854
- R v R (1989) 18 NSWLR 74
- Whitehorn v The Queen (1983) 152 CLR

Legislation: No specific legislation cited in the judgment.