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. The second clearly established proposition is that evidence to prove the defendant's guilty knowledge, as defined above, must not be the mere proof of the doing of the act charged, however horrifying or obviously wrong that act may be. As Erle J said in Reg v Smith (Sidney) (1845) 1 Cox CC 260: 'a guilty knowledge that he was doing wrong - must be proved by the evidence, and cannot be presumed from the mere commission of the act. You are to determine from a review of the evidence whether it is satisfactorily proved that at the time he fired the rick (if you should be of opinion he did fire it) he had a guilty knowledge that he was committing a crime.'" 4. The above dicta have been much cited and applied in the courts since: see, for example, 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) and R v CRH (unreported, NSWCCA, 18 December 1996). 5. How is the presumption to be rebutted? It cannot be rebutted merely by reference to the essential elements of the offence: see the dicta of Lord Lowry cited above. In C per Lord Lowry said at 39: "The cases seem to show, logically enough, that the older the defendant is and the more obviously wrong the act, the easier it will generally be to prove guilty knowledge. The surrounding circumstances are of course relevant and what the defendant said or did before or after the act may go to prove his guilty mind. Running away is usually equivocal, as Laws J rightly said it was in the present case, because flight from the scene can as easily follow a naughty action as a wicked one. There must, however, be a few cases where running away would indicate guilty knowledge, where an act is either wrong or innocent and there is no room for mere naughtiness. An example might be selling drugs at a street corner and fleeing at the sight of a policeman. The Divisional Court here, assuming that the presumption applied, would have reversed the youth court, rightly, in my opinion, because there was no evidence, outside the commission of the 'offence', upon which one could find that the presumption had been rebutted. In order to obtain that kind of evidence, apart from anything the defendant may have said or done, the prosecution has to rely on interviewing the suspect or having him psychiatrically examined (two methods which depend on receiving co-operation) or on evidence from someone who knows the defendant well, such as a teacher, the involvement of whom adversely to the child is unattractive." 6. Mr Zahra submitted that the issue of whether or not the Crown had rebutted doli incapax was a matter for the trial judge and not the jury. He submitted that on this issue the jury has no role to play. In support of that submission he relied upon the decision of the Court of Criminal Appeal in R v CRH (supra). 7. I do not accept that submission. 8. It seems to me that CRH is not to be read in the manner for which Mr Zahra contended, but consideration of the submission requires close attention to the judgment of Newman J in CRH. With his decision the other members of the court agreed. 9. In CRH, at the close of the prosecution case, the appellant made an application similar to that made here by Mr Zahra, namely that the jury be directed to return a verdict of not guilty upon the basis that the Crown had not rebutted the common law presumption that the accused was doli incapax. That application was rejected and on appeal it was argued that the trial judge was in error in his rejection. The case concerned the alleged sexual assaults upon a young female by a twelve year old male. The complainant child gave evidence as to the commission of the offences charged and the appellant gave evidence denying the misconduct alleged. He made no admissions to the police and essentially, on the analysis of Newman J, the evidence relied upon by the Crown to rebut the common law presumption of doli incapax was the evidence of the complainant as to the commission of the offence. Newman J referred to the decision in C and cited the passages I have already recorded. His Honour determined that the dicta from Lord Lowry stated the law in Australia. His Honour said then (at p 13 of his judgment): "That being so…the evidence was insufficient to rebut the presumption of doli incapax having regard to the criminal standard of proof." 10. It seems to me that what his Honour was saying in CRH was that upon analysis of the facts of that case all that the Crown had proved was in effect the doing of the act charged and this was not enough. Hence there was no evidence upon which the jury could act to find that the relevant presumption had been rebutted. I should add that there is authority for the proposition that "naughtiness" as a state of mind in child sexual cases has been expressed as not uncommon in children of the appellant's age in CRH: see A v DPP (1997) 1 Cr App R 27 at 33. 11. It seems to me though that Mr Zahra's submission that the decision in CRH has the consequence that the jury has no role to play in determining whether the presumption of doli incapax has been rebutted reads into the decision that which is not there. Nowhere do any of the members of the court in CRH express as a statement of principle that the jury has no role to play on this issue. What occurred in CRH was simply that there was no evidence available for the jury's consideration upon which it could act to make a finding that the presumption had been rebutted. The Court of Criminal Appeal did not say that if there was evidence available for the jury's consideration it nevertheless was not a jury question as to whether the presumption had been rebutted. 12. Mr Zahra was not able to draw my attention to any statement of principle to support his submission and I have been able to find no authority to support it either. In R v Gorrie (1918) 83 JP 136 Salter J directed the jury that the prosecution "must satisfy the jury that when the boy did this he knew that he was doing what was wrong - not merely what was wrong but what was gravely wrong, seriously wrong." 13. That direction was cited with apparent approval by Bray CJ in The Queen v M (1977) 16 SASR 589 at 593 and in The King v Brooks (1945) NZLR 854 it is clear that the Court of Appeal proceeded upon the basis that it was for the Crown to satisfy the jury as opposed to the trial judge, that a child under the age of fourteen years knew the act or omission charged against him was wrong. 14. In my opinion it is for the trial judge to determine whether there is evidence upon which the jury properly instructed could conclude that the presumption has been rebutted by the Crown. If there is such evidence, it is not for the trial judge to direct an acquittal, even it be the case that the judge himself, if left to determine the issue of doli incapax, would resolve it in the accused's favour. It is well settled that a trial judge does not have the power to direct a verdict of acquittal simply because he assesses that the evidence is such that a verdict based upon it would be unsafe and unsatisfactory: see, for example, R v Prasad (1979) 23 SASR 161 and R v R (1989) 18 NSWLR 74. In the latter case, Gleeson CJ, with whose judgment the other members of the court agreed, referred to the decision of the High Court in Whitehorn v The Queen (1983) 152 CLR 657 and to the observations made by Dawson J in that case at 675 as to aspects of trial procedure which restrict the extent to which a trial judge may intervene. The Chief Justice went on to say this (at 85): "To the aspects mentioned by Dawson J I would add the role of the jury as the tribunal of fact. It is that consideration, rather than any point of legal technicality, which underlies the decisions in cases such as R v Galbraith (1981) 1 WLR 1039, R v Prasad (supra) , Attorney General's Reference (No. 1 of 1983) (1983) 2 VR 410, and Mezzo (1986) 27 CCC 3d 97. The legal principles which underpin the narrower view in turn flow from, or are particular manifestations of, that basic aspect of criminal justice. It is one thing to recognise in courts of criminal appeal a power to review a jury's determination of fact. It is another thing altogether to permit a trial judge to pre-empt such a determination ." (Emphasis added) 15. In my opinion, to accede to the application made by Mr Zahra would have the consequence of pre-empting the jury's determination of a factual issue which it is charged to determine. 16. If there was no evidence upon which the jury could properly conclude that the presumption was rebutted, then it would be proper for me as the trial judge to direct the jury to acquit the accused. However, Mr Zahra concedes that there is evidence available upon which a tribunal could act; his submission is that the court should not act upon that evidence so as to find that the presumption of doli incapax has been rebutted. That is a submission properly to be pursued with the jury and no doubt, as a consequence of my decision on this application, it will be vigorously pursued with the jury by Mr Zahra. 17. It seems to me that there are a number of features of the evidence available for the jury's consideration on the issue as to whether the Crown has rebutted the presumption of doli incapax in the case of this accused. Mr Zahra has dealt with a number of these features in his submission, proceeding as he has done upon the basis that it was for me to make the evaluation of the evidence and for me to determine, as he submitted I should determine, that the Crown had not discharged its onus in this regard. 18. In C, Lord Lowry identified as possible sources of evidence to rebut the presumption the following: (i) the surrounding circumstances of the commission of the offence (ii) what the accused may have said or done; (iii) evidence from teachers or others who know the accused well; (iv) psychiatric assessment of the accused. 19. The Crown has here submitted that there is material available for the jury's consideration in each of the above categories. (i) Whilst the evidence does not reveal that there was anything untoward before the deceased and the accused reached the Big Rock area, there is the evidence that once there the accused picked up and carried a protesting and struggling child much smaller than himself to the edge of the rock before then pushing or dropping him into the water. There is the verbal exchange on the way to the edge of the rock referred to in (ii) below, culminating in the accused saying "too bad". There are then the features of the rock face itself and of the river below. (ii) There are the utterances attributed to the accused. It seems to me that it is for the jury to decide as a matter of fact whether what was said indicated the accused's state of mind at the time he put the child in the water, and an appreciation of the seriousness of what he had done (see C (supra) and L (supra) at 505). As he was forcing the deceased towards the edge of the rock, the latter protested "Luke is going to chuck me in" and the accused said "No, we're not." Then after the child entered the water the accused asserted he was going to get help. There is evidence contrary to his entertaining any such intention in what he said to the young girls he met after he left Big Rock. The accounts of GW1 and GW2 are not entirely consistent the one with the other. According to GW1 she asked the accused did he know where the deceased was and was told that he was down in the bush but that the whereabouts were none of her business. She said that the accused asserted that he did not know where the child was in the bush. GW2 gave a different account and said that when the girls encountered the accused he called GW1 over and said Corey was down the river in the water. Whilst there are discrepancies given by GW1 and by GW2 it is for the jury to determine what evidence it accepts from either source. It would be open to the jury to conclude that in what he said to GW1 he was concealing what had happened to the deceased. Then there is the evidence of the conversation which the accused had with Constable French. I detailed this conversation when delivering an earlier judgment as to the admissibility of the evidence of Constable French and I will not repeat the relevant conversation here. There is evidence that in that statement the accused did not tell the truth concerning what happened in his encounter with GW1 shortly after the accused left the deceased in the water. It is for the jury to assess the significance of all the above utterances by the accused in considering the doli incapax issue. (iii) The jury has the evidence before it of three school teachers who taught the accused prior to March 1998, Ms Scott, Ms Calderon and Ms Robinson. Each of these teachers gave evidence as to the accused being behind intellectually and no doubt this is a matter upon which Mr Zahra will place much emphasis in addressing the jury. However, looking at the Crown's case at its highest, and this is relevant in determining if there is evidence upon which a jury could find that the Crown has rebutted the presumption of doli incapax, the teachers all gave evidence concerning the behaviour of the accused at school. Ms Scott said that the accused presented no problem in observing classroom rules. Nor did he present a problem in relation to playground rules except for the out of bounds rule. This was a rule introduced during the course of the accused's schooling that separated children of his age from those of kindergarten age. The accused was slow to conform with that rule. Ms Calderon gave evidence that the accused was well behaved. He did get into trouble but no more than she regarded as being normal. Ms Robinson, who started to teach the accused only weeks before the death of the deceased, said that the behaviour of the accused was "perfect". He followed the class rules and records were kept of any breaches of playground rules. There was no record of any such breach by the accused. The evidence of the teachers assumes emphasis from the evidence of Dr Wotton. (iv) Dr Wotton, a child psychiatrist, interviewed the accused's mother once and the accused himself twice, these interviews taking place very shortly before the trial. The history that the mother gave the doctor was that the accused was an average boy who gave no particular trouble, and considering that history and the assessments of the teachers about the behaviour of the accused at school, Dr Wotton expressed the view that if there had been major problems in the accused understanding the difference between right and wrong then this would have shown up in his everyday behaviour at home and at school. Dr Wotton considered on this material that the accused probably understood the difference between right and wrong in the school setting and in the home setting. The significance of this in the present context is a matter for the jury. There is further evidence of Dr Wotton which assumes particular relevant in the context of Mr Zahra's submission. When asked about the significance of the accused, as it were, "running away" from Big Rock, Dr Wotton said it was possible that this was indicative of an failure to understand the consequences of his actions, but Dr Wotton's further evidence was that to the effect that the behaviour reflected an anxiety about what happened and a perceived need by the accused to conceal his part in it. The jury could regard this as indicative of an awareness of serious wrongdoing, although as Lord Lowry observed in C , "running away is usually equivocal" . 20. In my opinion as the evidence stands, there is evidence upon which the jury could find that the Crown has rebutted the presumption of doli incapax, and in these circumstances it is not appropriate for me to determine whether the jury should do so. 21. Hence the application failed and the trial has proceeded. ********** Last Modified: 10/28/2009 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.