Citation: R v RL (No 1) [2016] NSWDC 162
Court: District Court of New South Wales
Date: 5 August 2016
Judge: Berman SC DCJ
Background
The accused faced a seven-count indictment arising from alleged historical sexual offences committed against his younger sister in the early 1960s, when the complainant was between approximately 5 and 15 years old. The complainant, by the time of trial aged 62, alleged a series of incidents of sexual abuse spanning several years. The accused elected trial by judge alone, with the prosecution consenting.
The charges included allegations of carnal knowledge (penetrative sexual intercourse), indecent assault, and inciting two younger brothers to have carnal knowledge with the complainant. The accused pleaded not guilty to the penetrative offence counts and to the incitement counts, but pleaded guilty to the alternative indecent assault counts on two charges, and not guilty to a later count of indecent assault.
A significant evidentiary difficulty arose from the historical nature of the offending and uncertainty about the precise dates of the alleged incidents, which bore directly on the age of the accused at the relevant times.
Legal Issues
- Whether the Crown had proved beyond reasonable doubt that carnal knowledge occurred on the occasions the subject of Counts 1 and 3.
- Whether the accused was conclusively presumed incapable of committing the offence of carnal knowledge (Count 1) by reason of his age at the time.
- Whether the Crown had rebutted the presumption of doli incapax (that a child under 14 does not know the difference between right and wrong) in relation to the incitement counts (Counts 5 and 6), given uncertainty about whether the accused had reached 14 years of age at the relevant time.
- Whether the Count 7 indecent assault, alleged when the complainant was approximately 15, was proved beyond reasonable doubt.
Decision
Count 1: Conclusive presumption of incapacity
The court found that at the time of the incident underlying Count 1, the accused was under the age of 14 and, on the evidence, below the age at which he could be held criminally liable for carnal knowledge under the then-applicable law. This conclusive presumption meant the Crown could never have proved that count, regardless of the factual evidence about penetration. The court noted critically that this count should never have appeared on the indictment, as it placed the complainant through the unnecessary distress of cross-examination on an allegation the Crown was legally barred from establishing.
Counts 3, 5, and 6: Doli incapax and age uncertainty
For the outdoor incident underlying Counts 3, 4, 5, and 6, the timing was disputed and the evidence unclear. The court could not find beyond reasonable doubt that the accused had reached 14 years of age at the time these events occurred. The Crown bore the burden of disproving doli incapax, the presumption that a child under 14 lacks the capacity to understand that their conduct was seriously wrong, but adduced no evidence specifically directed to that question. The Crown declined to call such evidence even after the risk was identified by the court. As a result, the court found Counts 3, 5, and 6 not proved.
Count 7: Indecent assault
The court was satisfied beyond reasonable doubt that the Count 7 indecent assault, alleged to have occurred when the complainant was approximately 15, was proved. No age-related legal barrier applied to this count, and the court returned a verdict of guilty.
A critical observation
The court emphasised that the acquittals on Counts 1, 3, 5, and 6 did not reflect any adverse finding about the complainant's credibility. Rather, they resulted from the operation of two legal rules governing the criminal liability of children, one of which has since been repealed, and the Crown's failure to lead evidence capable of satisfying those rules.
Orders Made
- Accused found not guilty on Counts 1, 3, 5, and 6.
- Accused found guilty on Count 7.
- Accused convicted on Counts 2 and 4 by reason of his pleas of guilty.
- Proceedings on Count 7 were subsequently stayed (see R v RL (No 2) [2016] NSWDC 182).
Key Takeaways
- The District Court confirmed that the conclusive presumption of incapacity for carnal knowledge applied to a child of the accused's age at the relevant time, rendering Count 1 unprovable as a matter of law irrespective of the factual evidence, and observed the count should never have been included on the indictment.
- Where an accused was under 14 at the time of an alleged offence, the Crown bears the burden of rebutting the presumption of doli incapax beyond reasonable doubt, requiring affirmative evidence that the accused knew their conduct was seriously wrong, not merely naughty.
- A failure to adduce any evidence specifically addressing doli incapax, even after the issue was flagged by the court, will be fatal to the Crown's case on counts where the accused's age at the relevant time is not established to be 14 or above.
- Acquittals arising from the operation of age-related legal presumptions do not constitute findings that an accused's conduct did not occur or that a complainant was not credible.
- The court's observations about the inclusion of an unprovable count on the indictment highlight the distress caused to complainants when charges are brought without proper attention to legal barriers such as conclusive presumptions of incapacity.
Legislation and Cases Referenced
Legislation
- Crimes Act (NSW) (including provisions, now repealed, governing carnal knowledge and the age of criminal responsibility)
Cases
- C (a minor) v DPP [1995] UKHL 15 (doli incapax and the presumption applicable to children under 14)
- R v Waite [1892] 2 QB 600 (historical authority on age and criminal capacity for sexual offences)
- R v RL (No 2) [2016] NSWDC 182 (subsequent stay of proceedings on Count 7)