Citation: R v RB [2022] NSWDC 315
Court: District Court of New South Wales
Date: 5 August 2022
Judge(s): Lerve DCJ
Background
The accused faced one count on indictment alleging a serious sexual assault against a child complainant. The alleged offending was said to have occurred in 2009 and 2010, when the accused was between 13 years and 4 months and 14 years and 10 months of age. The complainant, who was six or seven years old at the relevant time, had attended a childcare facility operated by the accused's mother at the family home.
The complainant did not disclose the alleged incident until March 2020. Police commenced an investigation, and the accused exercised his right to silence when spoken to by police.
Before the trial could proceed, the court was required to determine a preliminary question: whether the Crown could rebut the common law presumption of doli incapax, which presumes that a child between the ages of 10 and 14 is incapable of committing a criminal offence.
Legal Issues
- Whether the Crown could rebut the presumption of doli incapax to the criminal standard of beyond reasonable doubt
- Whether the accused's level of maturity at the relevant time demonstrated he knew his conduct was morally wrong, as distinct from merely naughty or mischievous
- Whether the circumstances surrounding the alleged act, including spraying deodorant on the complainant and an alleged threat, were capable of rebutting the presumption
- Whether the accused's home life, upbringing, and school education were sufficient to establish the requisite moral understanding
- Whether a Queensland Court of Appeal authority concerning a statutory test could be relied upon in a jurisdiction applying the common law
Decision
Issue 1: The applicable test and onus
The presumption of doli incapax at common law applies to children aged between 10 and 14. The onus rests entirely on the Crown to rebut the presumption to the criminal standard of beyond reasonable doubt, and no onus falls on the accused (at [17]). The true enquiry is whether the accused knew that the alleged conduct was morally wrong, not merely naughty or mischievous (at [25]).
Issue 2: Evidence of maturity
The only evidence of the accused's maturity was the subjective opinion of his mother, who described him as "very mature" from a young age. Lerve DCJ did not find this persuasive (at [54]). The court noted that the mother was 19 when the accused was born, had her own difficulties during his childhood, and that her recollections were uncorroborated by any teacher evidence or school syllabus records. There was no evidence of what sex education classes actually taught or whether the accused attended them (at [92]).
Issue 3: Circumstances of the alleged act
The court confirmed that the presumption cannot be rebutted by inference from the acts themselves (at [55]). The Crown placed particular weight on the alleged spraying of deodorant after the incident as evidence of sophisticated concealment. The court rejected this characterisation, finding the conduct was more likely to generate detection than avoid it, given the mother's known concerns about the accused inhaling aerosol vapours and the absence of deodorant from the home at the relevant time (at [58]). The alleged threat to "do it more" if the complainant told anyone was found to be equally consistent with awareness of naughty or mischievous conduct as with awareness of moral wrongness (at [94]).
Issue 4: Queensland authority and the applicable legal test
The Crown sought to rely on a Queensland Court of Appeal decision in which a similar threat was treated as sufficient evidence of capacity. The court accepted the accused's submission that the Queensland decision applied a different statutory test, namely whether the accused knew he "ought not" do the act, rather than the common law test applying in New South Wales (at [67]). The Queensland authority could not therefore support the Crown's case.
Issue 5: Home life and upbringing
Medical records, which the court preferred over the mother's oral evidence where conflicts arose (at [71]), disclosed incidents of violence in the home, the accused's history of inhaling aerosol vapours from a young age, and episodes of parental difficulty including the mother's depression. These matters caused the court genuine concern about the accused's capacity at the relevant time to distinguish between conduct that was merely naughty or mischievous and conduct that was morally wrong (at [87]).
Overall conclusion
Having initially formed a preliminary view that the Crown might be able to rebut the presumption, the court concluded after hearing oral evidence and considering the documentary material that the Crown had failed to do so beyond reasonable doubt (at [96]-[97]).
Orders Made
- Presumption of doli incapax not rebutted beyond reasonable doubt
Key Takeaways
- The District Court confirmed that the Crown bears the onus of rebutting doli incapax to the criminal standard of beyond reasonable doubt, with no onus on the accused at any stage (at [17]).
- The central question in a doli incapax inquiry is whether the accused knew the conduct was morally wrong, not merely naughty or mischievous; that distinction cannot be resolved by inference from the alleged acts themselves (at [25], [55]).
- Subjective parental opinion about a child's maturity, standing alone and unsupported by independent evidence such as school records, teacher observations, or syllabus material, carries limited persuasive weight in a doli incapax inquiry (at [54]).
- Where contemporaneous medical records conflict with a witness's oral recollections, the court preferred the medical records as documents made at the time by treating health professionals (at [71]).
- Statutory tests in code jurisdictions, such as Queensland's test of whether an accused knew they "ought not" do the act, differ from the common law test applicable in New South Wales, and authorities decided under those codes cannot be directly applied to common law doli incapax questions (at [67]).
Legislation and Cases Referenced
Legislation
- Children (Criminal Proceedings) Act , 1987
- E vidence Act , 1995
Cases
- BC v R [2019] NSWCCA 111
- Bugmy v The Queen [2013] HCA 37
- Longman v The Queen [1989] HCA 60
- Mahmood v Western Australia (2008) 232 CLR 397
- R v JJ; Ex parte Attorney General (Qld) [2005] QCA 153
- RP v The Queen (2016) 259 CLR 641; [2016] HCA 53
- Rye v Western Australia [2021] WASCA 43