EL v R [2021] NSWDC 585

District Court New South Wales

Medium Neutral Citation: EL v R [2021] NSWDC 585 Hearing dates: 20 October 2021 Decision date: 29 October 2021 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Appeal upheld. For orders see [179]. Catchwords: APPEAL – conviction appeal – robbery armed with offensive weapon – dishonestly obtain financial advantage by deception – doli incapax – whether presumption of doli incapax rebutted by prosecution. Legislation Cited: Crimes Act 1900 Mental Health Act 2007 Cases Cited: AL v R [2017] NSWCCA 34 BC v R [2019] NSWCCA 111 RP v The Queen [2016] HCA 53; 259 CLR 641 Texts Cited: NJ Lennings and CJ Lennings, "Assessing serious harm under the doctrine of doli incapax: A case study (October 2016) Psychiatry, Psychology and Law 1, 2. Category: Principal judgment Parties: Director of Public Prosecutions (Crown) EL (Appellant) Representation: Solicitors/Trial Advocates: A. Brookman (Crown) T. Voros (Appellant) File Number(s): 2020/274573 Publication restriction: Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 it is an offence to publish or broadcast the name of the appellant. Decision under appeal Court or tribunal: Surry Hills Children's Court Date of Decision: 30 March 2021

Judgment 1. The appellant appeals against his conviction in the Children's Court on the following charges: 1. That contrary to s 97(1) of the Crimes Act 1900 on 17 September 2020 at Kingsford in the State of New South Wales, he did rob Yu Wai Lee of certain property whilst being armed with an offensive weapon, and; 2. That contrary to s 192E(1)(b) of the Crimes Act 1900, on 17 September 2020 at Haymarket in the State of New South Wales, he did dishonestly obtain a financial advantage by deception. 1. The matter was heard in the Surry Hills Children's Court on 15 March 2021 and 30 March 2021. Judgment was delivered by the learned magistrate on 30 March 2021. 2. The appellant is a young person. At the time of the offending conduct, he was approximately 13 and a half years old. As the appellant was under 14 years of age, it was necessary for the Crown to rebut the presumption of doli incapax. The learned magistrate found the prosecution had proven all of the elements of ss 97(1) and 192E(1)(b) of the Crimes Act and further, that the prosecution proved beyond reasonable doubt that the appellant knew his conduct was seriously wrong. 3. The appeal is heard by way of a rehearing based on the transcript of evidence before the learned Children's Court magistrate. In determining the appeal, I am to apply the principles governing appeals from a Judge sitting without a jury, and I am to form my own judgment of the facts on the basis of the transcript evidence, recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called in the lower court. 4. I have also had regard to the exhibits tendered in the Local Court and I have read the remarks of the learned magistrate in her judgment on 30 March 2021. 5. The appellant relied on two substantive grounds of appeal. First, the identification evidence was not capable of satisfying the tribunal of fact beyond reasonable doubt as to the young person's guilt. Secondly, on the evidence presented, the prosecution did not discharge the presumption of doli incapax in that the young person was incapable of forming a criminal intent. 6. Conventionally, those two issues would be dealt with in the order set out above. However, as determination of the identification issue involved the personal appearance by the young person and his father in court at the time the appeal was listed, which was not possible as a result of the protocols adopted by the District Court at the time of the appeal, I listed the matter for the issue of doli incapax to be determined. Relevant to that issue, the appellant was allowed to adduce fresh evidence by way of a report from the appellant's treating psychiatrist, Dr Llosa, dated 19 March 2021, and Dr Llosa was called to give evidence on the appeal. For the purposes of determining the issue of doli incapax, it is to be assumed that the identification issue is resolved against the appellant's interest.