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District Court 5 March 2015

R v GW

[2015] NSWDC 52

Public order & justice offences
CRIMINAL LAW DOLI INCAPAX REBUTTABLE PRESUMPTION PREVIOUS FINDINGS OF GUILT

Citation: R v GW [2015] NSWDC 52
Court: District Court of New South Wales
Date: 5 March 2015
Judge: Lerve DCJ

Background

A juvenile appellant (identified only as GW, given her age and the anonymity requirements applying to children) was found guilty in the Children's Court at Dubbo of defacing a wooden bench with a graffiti item, contrary to s 4(1) of the Graffiti Control Act 2008. The act itself was not in dispute: CCTV footage showed GW leaning over the bench with a marker pen, and the graffiti included her own name. The sole issue before the Children's Court was whether the prosecution had displaced the common law presumption of doli incapax.

At the Children's Court hearing, the police prosecutor tendered a bail report over objection in an attempt to rebut the doli incapax presumption beyond reasonable doubt. The Children's Court found GW guilty, and she appealed to the District Court through the Aboriginal Legal Service.

The appeal came before Lerve DCJ on 5 March 2015. The Crown did not oppose the appeal being upheld, and the judge allowed it, later publishing detailed reasons.

  • Whether the prosecution discharged its burden of rebutting the common law presumption of doli incapax beyond reasonable doubt
  • Whether the bail report tendered by the police prosecutor was admissible or sufficient evidence for that purpose
  • Whether a child's prior findings of guilt are admissible to rebut the doli incapax presumption, and if so, in what form

Decision

The doli incapax presumption applies to children aged between 10 and 14 years. Under the common law, as confirmed by the NSW Court of Criminal Appeal in BP v The Queen [2006] NSWCCA 174, the prosecution must prove beyond reasonable doubt not only that the child committed the act with the requisite mental element, but also that the child knew the act was seriously wrong, as distinct from mere naughtiness or mischief. Proof of the act alone, however obvious its wrongness may appear, is not sufficient.

Lerve DCJ found that the bail report tendered by the police prosecutor was the central evidentiary problem. The judgment does not set out that the bail report contained prior findings of guilt in an admissible form. Even where a child has prior findings of guilt on record, the existing law does not render a formal criminal history (a "fingerprint report") admissible without further evidentiary foundation, leaving prosecutors in a difficult position when seeking to rebut the presumption.

Because the prosecution had not displaced the doli incapax presumption to the required standard, the finding of guilt could not stand. The appeal was upheld and the finding of guilt, along with any consequential orders, was set aside.

Orders Made

  • The appeal is upheld.
  • The finding of guilt and any consequential orders are set aside.

(Note: the orders section in the provided text was truncated. The above reflects what was recorded.)

Key Takeaways

  • The doli incapax presumption remains part of the common law in New South Wales for children aged 10 to 13 inclusive, and the prosecution bears the onus of rebutting it beyond reasonable doubt, independent of proof of the act itself.
  • Proof that a child committed the offending act, even where the act is clearly identifiable and documented by CCTV and other evidence, does not of itself satisfy the prosecution's burden on doli incapax.
  • Under the law as it stood at the time of this decision, a child's formal criminal history (prior findings of guilt) was not automatically admissible to rebut the doli incapax presumption without further evidentiary foundation, creating a practical gap for prosecutors.
  • Lerve DCJ made strong recommendations for legislative reform, including: a requirement that doli incapax be flagged at the time of the not guilty plea; that the minimum age for the presumption be reduced from 14 to 12; and that a prior criminal history be made admissible by statute for the limited purpose of rebutting the presumption.
  • The District Court noted the absence of any procedural obligation on a child or their representative to notify the prosecution in advance that doli incapax will be raised, a gap the judge described as too open to abuse.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), s 5
- Evidence Act 1995 (NSW)
- Graffiti Control Act 2008 (NSW), s 4(1)

Cases:
- BP v The Queen [2006] NSWCCA 174
- Re C (A Minor) [1996] AC 1
- Ivers (by his tutor Ivers) v Griffiths & Anor, NSWSC, 22 May 1998 (unreported)