RH v Director of Public Prosecutions (NSW) [2014] NSWCA 305

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: RH v Director of Public Prosecutions (NSW) [2014] NSWCA 305 Hearing dates: 22 August 2014 Decision date: 04 September 2014 Before: Beazley P at [1]; McColl JA at [3]; Basten JA at [14] Decision: (1) Allow the appeal and set aside the order in the Common Law Division dismissing the appeal. (2) Allow the appeal to the Supreme Court and set aside the finding of guilt of the applicant at Wentworth Children's Court on 6 July 2012 and the caution administered on 10 August 2012. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: APPEAL - error of law by magistrate - whether, applying correct legal principle to facts, only one conclusion open - whether, if more than one conclusion open, only trial court can make finding - discretion to remit - whether in interests of administration of justice - Crimes (Appeal and Review) Act 2001 (NSW), ss 52, 55

CRIMINAL LAW - age of criminal responsibility - child aged 12 when offence occurred - presumption that child between 10 and 14 years not criminally responsible - whether presumption of no criminal responsibility of child rebutted - subjective test to determine whether presumption rebutted Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), s 5; Pt 3 Crimes (Appeal and Review) Act 2001 (NSW), ss 3, 52, 53, 55, 65 Crimes Act 1900 (NSW), s 112 Criminal Procedure Act 1986 (NSW), s 16 Supreme Court Act 1970 (NSW), s 101 Cases Cited: C (A minor) v Director of Public Prosecutions [1996] AC 1 Director of Public Prosecutions v Priestley [2014] NSWCA 25; 201 LGERA 1 Ex parte Lovell; Re Buckley (1938) 38 SR(NSW) 153 Maritime Authority of New South Wales v Rofe [2012] NSWSC 5; 84 NSWLR 51 R (a child) v Whitty (1993) 66 A Crim R 462 Category: Principal judgment Parties: RH (Applicant) Director of Public Prosecutions (NSW) (Respondent) Representation: Counsel: Mr J Nicholson SC/Mr H T Quilter (Applicant) Ms A Mitchelmore (Respondent) Solicitors: Aboriginal Legal Service (NSW/ACT) (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): CA 2013/175412 Decision under appeal Jurisdiction: 9111 Citation: RH v Director of Public Prosecutions (NSW) [2013] NSWSC 520 Date of Decision: 2013-05-10 00:00:00 Before: Hoeben CJ at CL File Number(s): SC 2012/324592