Children's Court New South Wales Medium Neutral Citation: R v Harry [2025] NSWChC 3 Hearing dates: 18 February 2025 Date of orders: 18 February 2025 Decision date: 18 February 2025 Jurisdiction: Criminal Before: Children's Magistrate Hayes Decision: Dismissed Catchwords: CHILDREN — CRIME — 100 police interactions — accusatorial system is not focused on the referral to expert services or the reasons why you have been in conflict with the law — doli incapax means the greater the background of disadvantage the less likely a child will be held criminally responsible — the greater the need for intervention the less likely there will be intervention — children under 14 never get to be supervised by Youth Justice — refused to participate or engage with police Legislation Cited: Crimes Act 1900 (NSW) Cases Cited: RP v The Queen (2016) 259 CLR 641 RP v R [2015] NSWCCA 215 Stapleton v The Queen (1952) 86 CLR 358 Category: Principal judgment Parties: Harry (Young Person) Representation: Mr Robinson (Prosecutor) Mr Wright (Solicitor for Young Person) File Number(s): 2025/00004150 Publication restriction: Pseudonyms have been used to protect the identity of the Young Person. JUDGMENT BACKGROUND 1. Harry is the Young Person. 2. Harry is charged with an aggravated break and enter offence, and whilst in the house committed a serious indictable offence in circumstances of aggravation - knowing that there were persons present in the home. The indictable offence is alleged to be the stealing of motor vehicle keys. 3. Harry is also charged with three other offences: steal motor vehicle, knowingly carried in a motor vehicle taken without consent, hinder police and disseminate material to advertise their involvement in an offence – known as a post and boast offence. 4. The offences are under section 112(2), 154 F, 154 A (1)(b), 60(1AA) and 154K(1) of the Crimes Act 1900 (NSW). 5. Harry was aged 13 years. 6. Harry pleaded not guilty. 7. The matter was listed for hearing today. 8. Harry, I am going to firstly talk about the legal system, then about your matter, then if you, your lawyer, and the prosecutor do not mind I can talk about you. CRIMINAL JUSTICE SYSTEM 1. Laws help to protect people. Laws also ensure fairness and maintain good order. 2. The rule of law means all are subject to the law and no one is above it. The law must be known in advance, applied evenly, and enforced fairly. 3. Parliament makes laws. The Executive puts laws into practice. The Executive includes the Police who enforce the law. Courts determine disputes. 4. Parliament, the Police and the Courts have separate roles and are separate from each other. Each keep checks on each other; as does the media. Whilst separated, each are united in their purpose to protect community safety. 5. The Criminal Justice system in NSW is an accusatorial system. 6. To help explain this system I will use an example: At 3:00 am, a 14-year-old intoxicated child in company of older children including her adult boyfriend is alleged to have thrown a brick through a hotel window. 7. The Police attend. The 14-year-old receives legal advice and does not admit the offence. 8. The child is charged by Police with damage property. 9. The child is allocated a solicitor and pleads not guilty. 10. The Court sets aside time to hear evidence to decide whether the child is guilty or not. 11. A Magistrate is allocated. 12. At Court, there is usually a court officer; and court monitor who records the evidence. Sometimes there is a sheriff in court. 13. At the hearing the parties are the Police and the 14-year-old. 14. The primary responsibility of the Court is to ensure a fair trial according to law. The Magistrate takes no part in the contest. The arena is for the parties. 15. The parties are free to decide the ground on which they will contest the issue, the evidence which they will call, and what questions shall be asked. 16. A Prosecutor represents the police. 17. The Prosecution must prove the charge beyond reasonable doubt. 18. The 14-year-old accused cannot give evidence for the prosecution, but other witnesses might be called to give evidence to tell the court what they saw or heard. 19. The owner of the hotel may take the day off work to attend Court. Police who attended the scene might give evidence. There may be several police who could be questioned about the arrest. The civilian witness who contacted police may need to come to Court. There could be closed circuit tv of the street scene to view. There might be evidence of the cost of repair. Witnesses can be cross examined and re-examined. There is usually lots of legal argument. 20. After the prosecution case, if there is sufficient evidence, the 14-year-old accused is entitled to tell the court their version or call witnesses to show that they did not do what the Police say they did. 21. The Court then decides whether a person is guilty or not guilty. 22. At the hearing, it is not relevant that a 14-year-old child is out of home at 3:00 am, at night, intoxicated, on a school day, in the company of older persons. 23. The accusatorial system for defended matters applies whether you are 10, 11, 12 or 13. It is the same system for 14-year-olds and older. It is the same system for adults. YOUR MATTER 1. Your matter is more complicated because you were 13 at the time of these allegations. Because of your age the doctrine of doli incapax applies. 2. This means that the Police, if they can prove what they say you did, need to also prove beyond reasonable doubt that you knew what you did was seriously wrong in a moral sense when the starting point in law is that you did not know. 3. This is the only issue that the Court is asked to resolve. 4. For a child between 10 and 14 years there is a presumption that the child is doli incapax (incapable of crime): see RP v The Queen (2016) 259 CLR 641 at 648. 5. This means that a child is presumed to be incapable of committing a crime because the child is not sufficiently intellectually and morally developed to appreciate the difference between right and wrong; and therefore, lacks the capacity for mens rea (guilty mind): see RP v The Queen (2016) 259 CLR 641 at [8]. 6. To be criminally responsible the child must know that the act is seriously wrong as a matter of morality, according to the ordinary principles of reasonable persons, not that it is a crime or contrary to law: Stapleton v The Queen (1952) 86 CLR 358. 7. This presumption is a rebuttable presumption. 8. The means the Court must accept that the child lacks the capacity for a guilty mind as true - until evidence proves the contrary. 9. The test whether the prosecution has rebutted the presumption of doli incapax is a subjective one in that it is concerned with the state of mind of the particular minor: see Hoeben CJ at CL in RH v DPP at [22]. 10. In RP v The Queen (2016) 259 CLR 641 at 649 [9], what is spoken of is the child's actual knowledge. 11. Each case must be approached from the subjective circumstances of the child and not the presumed normal understanding of a child of a particular age. 12. The child might view their conduct as 'seriously wrong' in the sense that they are likely to be in trouble if caught, without the requisite understanding of the act for the purposes of moral wrongfulness. 13. Ultimately, it is for the Prosecution to rebut the presumption by proving beyond reasonable doubt that the child was sufficiently developed to know at the time that their physical acts of the offences charged were seriously wrong in a moral sense by normal adult standards. 14. No matter how obviously wrong the act or acts constituting the offence may be, the presumption cannot be rebutted merely as an inference from the doing of that act or those acts. Nor, in this case, is this argued. 15. Evidence required to rebut the presumption that a child is doli incapax will vary according to the nature of the allegation and the particular child: RP v The Queen (2016) 259 CLR 641 at 650-651 [12]. 16. The prosecution must point to evidence from which an inference can be drawn beyond reasonable doubt that the child's development is such that he or she knew that it was morally wrong to engage in the conduct. 17. In RP v R [2015] NSWCCA 215, Johnson J at [5] held that: "the doli incapax issue will be considered in the context of the developing understanding of a child which takes into account the child's previous acts, knowledge and experiences." 1. This directs attention to the child's education, including intellectual development and environment in which the child has been raised, including their moral development: see AL v The Queen [2017] NSWCCA 34. 2. The development in question is the intellectual and moral development of the child: see RP v The Queen [2016] HCA 53 at 651 [12]. 3. As to intellectual development, in RP v R [2015] NSWCCA 215 at [159] Hamill J recognised that: "evidence supported that the Applicant was of very low intelligence and possessed a lesser appreciation of the seriousness of his conduct." 1. Moral development involves the progress of what is right and wrong to more complex ways of distinguishing the difference. 2. The evidence before the Court includes a statement from a Sergeant of Police. 3. The Sergeant spoke to Harry having suspected him of involvement in a stolen vehicle - abandoned after a police pursuit. The Sergeant later spoke to Harry's mother. The mother was confused whether Harry was on bail. Harry tried to leave and initially wouldn't listen to his mother. 4. Segments of the Sergeant 's body worn video was admitted into evidence. 5. Other evidence included reference to four attendances at the Children's Court, five cautions, and almost 100 interactions with police. There were numerous attempts by police to have Harry involved in change programs. The evidence is that Harry refused to participate or engage with police. 6. Harry only attended the school for his enrolment interview and one other day in 2024. 7. Exhibit 3 contains schooling documentation. 8. In 2023, Harry signed a suspension resolution agreeing to attend classes on time, follow teacher instructions and other conditions but with no consequence of breach other than further suspension. There was no evidence of explanation or Harry's understanding or acknowledgment by Harry as to why Harry's behaviour was bad, or why there are rules, or any relationship between those rules and the alleged offences before the Court. 9. Mr Wright points out in one set of notes of a school meeting Harry didn't communicate for the entire meeting. 10. Much of what the prosecution put before the Court regarding Harry's development reinforced his lack of development. 11. The Court saw body worn video recorded by a senior constable on 29 February 2024, where Harry admitted to throwing away a car key when police approached; saying he had found it. 12. But there was simply no evidence before the Court that demonstrated Harry had any understanding of moral thought involving his capacity to understand any criminal event, or his ability to judge whether his actions were right or wrong in a moral sense or an ability to act on that moral knowledge. 13. There was no details of any of the almost 100 interactions with police, other than the two body worn recordings referred to. There was no details that showed any response at all from Harry, let alone any appreciation of wrongfulness. 14. There was no evidence of any thing that happened at Court or even why Harry attended - but for reference to one attendance for a doli hearing. 15. There was no evidence of outcome, no lessons learnt, no insight, no consequence, no evidence of Harry's actions causing harm or him understanding his actions may cause harm. 16. Moral reasoning involves the interpretation that people make of information for evaluating right or wrong. 17. The limited engagement with school and education makes it more likely that Harry was not sufficiently intellectually and morally developed to appreciate the difference between right and wrong. 18. There was no evidence of any interaction with Youth Justice or their network of referrals. 19. The test whether the prosecution has rebutted the presumption of doli incapax is a subjective one in that it is concerned with the state of mind of Harry. 20. The Court is not satisfied beyond reasonable doubt that doli incapax has been rebutted. 21. The charges are dismissed. YOU 1. Harry, the last time you were at Court, I refused you bail. 2. You were 13. This meant you stayed locked up in a Juvenile Detention Centre. 3. There was a bail concern that you would endanger the safety of victims, individuals, and the community. This is mainly because these matters at Court are serious and you have a long history of really serious criminal charges, though none proven. 4. My note on bail was the car you were in was travelling at 140 kms per hour in a residential street. 5. The Sergeant says you have almost 100 interactions with Police. 6. I could not impose a bail condition to accept the supervision of Youth Justice. 7. Youth Justice work to reduce reoffending and to empower young people to participate in their communities in a prosocial way. They help young people to stay out of trouble. They are experts at this. 8. Youth Justice will only provide supervision of a child as a condition of bail where the child has pleaded guilty or been found guilty. 9. Where guilt has not been established, Youth Justice does not provide bail supervision. 10. This usually means that children under 14 never get to be supervised by Youth Justice no matter how many times a child is charged because offences are seemingly mostly not proved. 11. The greater the need for intervention — the less likely there will be intervention. 12. Sometimes being bail refused means disrupting education. Engagement with education is a strong protective role in reducing young people's offending. 13. Sometimes there is a negative impact when young people are separated from family, culture and community. 14. Sometimes hanging out with older kids whilst in detention or with sentenced offenders create antisocial peer groups – other kids that might influence further offending. 15. Sometimes detention changes behaviours. 16. In the short-term, detention protects the community. Sometimes in the long term, it makes it worse. 17. The accusatorial system is not focused on the referral to expert services or the reasons why you have been in conflict with the law. 18. Often the reasons are one or a combination of problems, seldom exclusively the fault of the child. 19. Some have a mental health impairment, cognitive impairment, other physical or intellectual disabilities, insecure childhood attachment, trauma, homelessness, have experienced multiple placements in out-of-home care, alcohol, drugs, debt, domestic violence, discontinuation with education, disconnection from culture, sexual abuse, serious social disadvantage, a sense of hopelessness, an absence of self-esteem, no pro-social influences or activities, no birth certificate or identification. 20. Many require a therapeutic approach. 21. Doli incapax means the greater the background of disadvantage, the less likely a child will be held criminally responsible - or then be rehabilitated through Court intervention - or subject to the other purposes of sentence – or be diverted from the criminal system (for example, under the Young Offenders Act 1997 (NSW), that requires an admission) - or have any offence proven. 22. Because no matters are proven, the child cannot be subject to Youth Justice supervision, who ordinarily do an extraordinary job. 23. Harry, I have seen children who have had serious matters dismissed. Then at 14, they commit other offences and are held criminally responsible. Some of those offences are dangerous to themselves and to the community. 24. I have seen and heard of young people who turn 14 who are alleged to have committed really serious crimes, sometimes with tragic outcomes. 25. Whilst in detention you turned 14. 26. Thank you for listening Harry, and to others too. 27. Harry, you will now be released back into the community. 28. I wish you well. ********** Amendments 20 February 2025 - Amended coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 February 2025