Police v CO [2020] NSWChC 8

Children's Court New South Wales

Medium Neutral Citation: Police v CO [2020] NSWChC 8 Hearing dates: 23 October 2020 Decision date: 13 November 2020 Jurisdiction: Criminal Before: Magistrate Lacy Decision: Charges dismissed Catchwords: CRIMINAL LAW – doli incapax – s.66 Young Offender's Act – admissibility of warning Legislation Cited: Children (Criminal Proceedings) Act 1987 Evidence Act 1995 Young Offender's Act 1997 Cases Cited: RP v The Queen [2016] HCA 53. Category: Principal judgment Parties: NSW Police Service Aboriginal Legal Service Representation: Mr P Mort - Police Ms J Best - Young Person File Number(s): 2020/00164904 Publication restriction: Consistent with s 15A Children (Criminal Proceedings) Act 1987 the names and any information likely to lead to the identification of any children involved in this case have been anonymised in the published version of this judgment.

Judgment

Background 1. On 23 October 2020, the Young Person came before the Children's Court for a defended hearing on five counts of larceny pursuant to s. 117 Crimes Act 1900. The offences were alleged to have taken place on 10 January 2020 when the Young Person was aged 13 and 11 months. Given her age, the common law rebuttable presumption of doli incapax – "that a child under aged under 14 years is not sufficiently intellectually and morally developed to appreciate the difference between right and wrong and thus lacks the capacity for mens rea" - RP v The Queen [2016] HCA 53 at 8 – applies and must be overcome by the prosecution beyond a reasonable doubt. 2. During the hearing, the prosecution sought to tender a statement from Senior Constable William Young dated 24 July 2020 to negate the presumption of doli incapax. According to Senior Constable Young's statement, on 4 September 2019, he delivered a warning pursuant to s.15 of the Young Offenders Act 1997 to the Young Person and her friend for an offence of attempted shoplifting. In particular, the prosecution seeks to rely on paragraphs 5 and 9 of his statement which includes the following: Paragraph 5 – "I spoke to both girls who were clearly agitated and upset by the incident. While speaking to them I explained that shoplifting and stealing was a crime and that they could be arrested and charged by Police for it." Paragraph 9 – "I explained to both girls, in front of [the Mother], that stealing and shoplifting was a crime and that in future they could be arrested and charged if they were to do it again. I also explained that being charged means that they would have to go to court and face a penalty by a magistrate." 1. Ms Best, who acts on behalf of the Young Person, objected to the admissibility of Senior Constable Young's statement firstly, on the basis that the evidence contained therein was obtained improperly or in contravention of an Australian law or in consequence of an impropriety or of a contravention of Australia law and thus should be excluded pursuant to s.138(1) Evidence Act 1995. It is submitted by Ms Best that Senior Constable Young, in providing a statement to in relation the instant matter and divulging the warning that he had given to the Young Person, places him in contravention of s. 66 of the Young Offender's Act 1997. 2. The submission is a novel one and one which has not previously been the subject of recorded judicial consideration. As a result, the matter was adjourned to today for the Court to obtain and consider written submissions provided by the parties. The issue for determination requires the Court to undertake an exercise in statutory interpretation. 3. Secondly, in the event that the Court finds against the Young Person in relation to her first submission, Ms Best alternatively submits Senior Constable Young's evidence should be excluded pursuant to s.137 of the Evidence Act 1995 on the basis that its probative value does not outweigh the unfair prejudice to the Young Person. 4. Lastly, Ms Best submits that if Senior Constable Young's statement is admitted then the prosecution has nevertheless failed to rebut doli incapax beyond a reasonable doubt as there is no evidence that the Young Person understood the moral wrongfulness of her behaviour when she was given the warning - refer RP v The Queen [2016] HCA 53. 5. Mr Mort, on behalf of the prosecution, submits that s.66 is not relevant in the current circumstances and that the Court should admit Senior Constable Young's statement. The prosecution further submits that it has successfully rebutted doli incapax on the basis of his statement along with the CCTV footage which was tendered without objection in the proceedings.