Citation: R v IP [2023] NSWCCA 314
Court: NSW Court of Criminal Appeal
Date: 24 November 2023 (reasons published later)
Judge(s): Harrison CJ at CL, Wright and Wilson JJ
Background
The respondent, IP, was 13 years and 5 months old at the time of an alleged murder. Because he was between ten and fourteen years of age, the Crown was required to rebut the common law presumption of doli incapax: the presumption that a child of that age is incapable of appreciating the difference between right and wrong.
IP relied on a series of psychological and psychiatric reports in his defence. Those reports diagnosed him with Post-Traumatic Stress Disorder (PTSD) and Attention Deficit Hyperactivity Disorder (ADHD), and expressed opinions that these conditions adversely affected his ability to know that his actions were seriously wrong, particularly in moments of heightened emotional stress.
The Crown objected to the use of that expert evidence on the doli incapax issue, arguing it was irrelevant. The trial judge, Sweeney J, rejected both that objection and a subsequent Crown application to limit the evidence under s 136 of the Evidence Act 1995. The Crown appealed those rulings mid-trial under s 5F(3A) of the Criminal Appeal Act 1912.
Legal Issues
- Whether the doli incapax inquiry encompasses a child's emotional state or impulse control at the time of the alleged act, or is confined to the child's general state of moral and intellectual development.
- Whether expert evidence about how PTSD and ADHD affected the respondent's capacity to control impulses during high-stress situations was relevant to rebutting the doli incapax presumption.
- Whether the Court of Criminal Appeal had jurisdiction to hear the Crown appeal, which required a finding that admitting the evidence without limitation would "substantially weaken" the Crown case.
Decision
The Court of Criminal Appeal allowed the appeal, setting aside Sweeney J's rulings and ordering that the expert evidence be limited under s 136 of the Evidence Act 1995 to issues other than doli incapax.
On the substantive law, the Court drew a critical distinction between two separate questions: whether a child possessed knowledge that an act was seriously wrong, and whether the child was able to act in accordance with that knowledge. The doli incapax inquiry goes to the first question only. It concerns the child's moral and intellectual development, not the child's capacity for impulse control or the effect of emotional arousal on behaviour at the time of the act.
The Court accepted that some conditions may be relevant to doli incapax where a mental disorder itself prevents a child from reaching the necessary level of moral understanding. However, the expert opinions in this case did not go that far. The opinions addressed how PTSD and ADHD affected the respondent's impulse control and decision-making under stress. That, the Court held, addresses the second question (capacity to act on knowledge), not the first (existence of knowledge), and was therefore not relevant to doli incapax.
On jurisdiction, the Court was satisfied that the unqualified admission of the expert evidence would substantially weaken, and potentially eliminate, the Crown case on doli incapax. The Crown possessed a body of factual evidence capable of rebutting the presumption, including evidence of school education about knives, the respondent's own messages acknowledging the consequences of knife use, and warnings from family members. Expert opinions layering a medical framing over what the Court described as a factual question would likely undercut the force of that evidence.
Orders Made
- The Crown appeal was allowed.
- The orders of Sweeney J made on 20 November 2023 were set aside.
- In their place, the expert evidence identified in the Schedule to the judgment was admitted, but limited under s 136 of the Evidence Act 1995 to issues in the trial excluding the issue of doli incapax.
Key Takeaways
- The doli incapax presumption requires the Crown to prove that a child aged between ten and fourteen knew, at the time of the alleged offence, that the act was seriously wrong. The High Court authorities in RP v The Queen and BDO v The Queen confirm this inquiry is individualised to the particular child and the particular allegation.
- A child's moral and intellectual development is the proper subject of the doli incapax inquiry. Evidence of a mental disorder is capable of being relevant, but only where the disorder itself prevents the child from reaching the level of development where serious moral wrongfulness can be understood.
- Expert evidence going to impulse control, emotional reactivity, or the inability to resist urges under stress addresses a different question: whether the child could act consistently with existing knowledge. That question falls outside the scope of doli incapax as the Court of Criminal Appeal has now clarified it.
- Under s 5F(3A) of the Criminal Appeal Act 1912, the Court of Criminal Appeal has jurisdiction to hear a Crown appeal from a pre-verdict evidentiary ruling where admitting evidence without limitation would "substantially weaken" the Crown case. The Court found that threshold met here, given the centrality of doli incapax to the trial.
- Section 136 of the Evidence Act 1995 permits a court to admit evidence while limiting the purposes for which it may be used. The Court ordered that mechanism applied here, allowing the expert reports to be used on other issues (such as mental health defences or intent) but not on doli incapax.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912 (NSW), s 5F(3A)
- Evidence Act 1995 (NSW), s 136
- Criminal Code 1899 (Qld), s 29
Cases
- RP v The Queen (2016) 259 CLR 641; [2016] HCA 53
- BDO v The Queen [2023] HCA 16
- AL v Regina [2017] NSWCCA 34
- R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112
- The Queen v M [1977] 16 SASR 589