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District Court 29 October 2021

EL v R

[2021] NSWDC 585

Assault & violenceTheft & property
APPEAL CONVICTION APPEAL ROBBERY ARMED WITH OFFENSIVE WEAPON DOLI INCAPAX

Citation: EL v R [2021] NSWDC 585
Court: District Court of New South Wales
Date: 29 October 2021
Judge(s): Mahony SC DCJ

Background

The appellant was approximately 13 and a half years old when, on 17 September 2020, he allegedly approached a woman in Kingsford while riding a scooter, produced a knife, and demanded her cash and bank card. Shortly afterwards, he was alleged to have used the stolen bank card to pay a taxi fare, telling the driver he was 14 years old and that he had lost his card.

The appellant was charged in the Children's Court with armed robbery under s 97(1) of the Crimes Act 1900 and dishonestly obtaining a financial advantage by deception under s 192E(1)(b). The Children's Court magistrate found both offences proved and was satisfied the prosecution had rebutted the presumption of doli incapax (a legal presumption that a child under 14 lacks criminal capacity unless proved otherwise). The appellant appealed to the District Court.

The appeal was structured as a rehearing on the transcript. Because COVID-related court protocols prevented the identification evidence from being tested in person, the District Court determined the doli incapax question first, assuming for that purpose that identification was resolved against the appellant.

  • Whether the prosecution rebutted the presumption of doli incapax beyond reasonable doubt, that is, whether the appellant knew at the time of the offences that his conduct was seriously or gravely wrong.
  • Whether, in light of fresh psychiatric evidence adduced on appeal, the appellant's cognitive and emotional capacity was consistent with that required knowledge.

Decision

The District Court heard fresh evidence from Dr Llosa, the appellant's treating psychiatrist, who gave evidence of multiple complex diagnoses affecting the appellant's impulse control, emotional maturity, and understanding of the impact of his conduct on others. The court also reviewed extensive school records documenting repeated suspensions for physical violence and misbehaviour, police records of prior dealings, a provisional Apprehended Domestic Violence Order made against the appellant for the protection of his father, and Instagram messages introduced via police statement.

His Honour accepted that the school and police records showed the appellant had some awareness that his behaviour was wrong and would attract consequences. However, the court found that this awareness had not translated into any meaningful change in behaviour, despite repeated disciplinary interventions. The father's evidence that the appellant was "just not getting it" was accepted. The court noted the appellant was, at the time of the offences, suspended from school, homeless, and unmedicated.

Dr Llosa conceded in cross-examination that the appellant would understand that robbing someone at knifepoint was seriously wrong. Despite that concession, the court found that such understanding was superficial and not grounded in any genuine comprehension of criminal responsibility. The court drew a distinction between knowing that conduct is wrong and knowing it to be seriously or gravely wrong in the meaningful sense required to rebut doli incapax.

The court was not satisfied beyond reasonable doubt that the appellant possessed the necessary knowledge. It upheld the appeal and set aside the Children's Court convictions.

Orders Made

  • The appeal is upheld.
  • The orders made by the learned magistrate on 30 March 2021 are set aside.

Key Takeaways

  • The District Court confirmed that rebutting the doli incapax presumption requires the prosecution to prove, beyond reasonable doubt, that the child knew at the time of the offending that the conduct was seriously or gravely wrong, not merely that it was naughty or likely to attract punishment.
  • A child's superficial awareness that conduct will get them into trouble is insufficient to establish the quality of moral understanding that the presumption demands. The court drew a clear line between surface-level knowledge of wrongness and meaningful comprehension of criminal responsibility.
  • Evidence of repeated disciplinary responses that produced no behavioural change was treated as undermining, rather than supporting, a finding that the child genuinely understood the gravity of the conduct.
  • Psychiatric evidence addressing a child's impulse control, emotional maturity, and capacity to appreciate the impact of conduct on others is relevant and capable of weighing against rebuttal of doli incapax, even where the expert concedes general awareness of wrongfulness.
  • Fresh evidence may be adduced on a conviction appeal in the District Court from the Children's Court, and the appeal court forms its own view of the facts on the transcript while giving weight to the lower court's advantage in assessing witness credibility.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 97(1), 192E(1)(b)
- Mental Health Act 2007 (NSW)
- Evidence Act 1995 (NSW), s 178

Cases
- AL v R [2017] NSWCCA 34
- BC v R [2019] NSWCCA 111
- RP v The Queen [2016] HCA 53; 259 CLR 641