R v LMW [1999] NSWSC 1343

New South Wales Supreme Court CITATION : R v LMW [1999] NSWSC 1343 CURRENT JURISDICTION : FILE NUMBER(S) : 070031/99 HEARING DATE(S) : JUDGMENT DATE : 30 November 1999

PARTIES : Regina (Crown) LMW (Accused) JUDGMENT OF : Studdert J

COUNSEL : G. Smith (Crown) P. Zahra (Accused) SOLICITORS : Office of the Director of Public Prosecutions (Crown) Legal Aid Commission (Accused) CATCHWORDS : CRIMINAL LAW - juvenile accused - legal capacity C v Director of Public Prosecutions (1996) 1 AC 1 A v Director of Public Prosecutions (1997) 1 Cr App R 27 CC v Director of Public Prosecutions (1996) 1 Cr App R 375 L v Director of Public Prosecutions (1996) 2 Cr App R 501 Re F (a child) (1998) 101 A Crim R 113 DK v Rooney & Anor (unreported, McInerney J, 3 July 1996) CASES CITED : R v CRH (unreported, NSWCCA, 18 December 1996). R v CRH (supra, NSWCCA). A v DPP (1997) 1 Cr App R 27 at 33. R v Gorrie (1918) 83 JP 136 The Queen v M (1977) 16 SASR 589 The King v Brooks (1945) NZLR 854 R v R (1989) 18 NSWLR 74 Whitehorn v The Queen (1983) 152 CLR DECISION : Application refused

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

STUDDERT J

Tuesday 30 November 1999

070031/99 REGINA v LMW

JUDGMENT (On application for direction that the jury acquit the accused)

1. HIS HONOUR: At the end of the Crown case Mr Zahra made an application that the jury should be directed to acquit the accused upon the basis that the Crown had failed to rebut the presumption of doli incapax. That application was refused and I now publish my reasons for such refusal. 2. The accused was only ten years and some three months of age when it is alleged his acts caused the drowning of the deceased, and in these circumstances the Crown must prove, as an element of his case, that when he committed the acts in question the accused knew that what he was doing was seriously wrong. 3. The relevant principles were stated by Lord Lowry in C v Director of Public Prosecutions (1996) 1 AC 1 at 38: "A long and uncontradicted line of authority makes two propositions clear. The first is that the prosecution must prove that the child defendant did the act charged and that when doing that act he knew that it was a wrong act as distinct from an act of mere naughtiness or childish mischief. The criminal standard of proof applies. What is required has been variously expressed, as in Blackstone, 'strong and clear beyond all doubt or contradiction', or in Rex v Gorrie (1918) 83 JP 136 'very clear and complete evidence' or in B v R (1958) 44 Cr App R 1, 3 per Lord Parker CJ, 'It has often been put in this way, that…"guilty knowledge must be proved and the evidence to that effect must be clear and beyond all possibility of doubt."' No doubt, the emphatic tone of some of the directions was due to the court's anxiety to prevent merely naughty children from being convicted of crimes and in a sterner age to protect them from the draconian consequences of conviction.