R v GW [2015] NSWDC 52

District Court New South Wales

Medium Neutral Citation: R v GW [2015] NSWDC 52 Hearing dates: 5 March 2015 Date of orders: 05 March 2015 Decision date: 05 March 2015 Jurisdiction: Criminal Before: Lerve DCJ Decision: Appeal upheld. Finding of guilt and any consequential orders are quashed. Catchwords: CRIMINAL LAW – doli incapax – rebuttable presumption – previous findings of guilt – recommendations as to legislative change Legislation Cited: Children (Criminal Proceedings) Act 1987 Evidence Act 1995 Graffiti Control Act 2008 Cases Cited: BP v The Queen [2006] NSWCCA 174 Ivers (by his tutor Ivers) v Griffiths & Anor BC 9803397 NSWSC unrep 22 May 1998 Re C (A Minor) [1996] AC 1 Category: Principal judgment Parties: Director of Public Prosecutions Aboriginal Legal Service - Young Person Representation: Solicitors: Ms R Fisher - Crown Mr C Day - Young Person File Number(s): 2014/135238 Decision under appeal Court or tribunal: Local Court Jurisdiction: Children's Court Date of Decision: 19 August 2014 Before: Magistrate M Price File Number(s): 2014/135238

Judgment

Reasons for Upholding the Appeal against Finding of Guilt

Introduction 1. On 19 August, 2014 the appellant, who is a juvenile and therefore remains anonymous, was found guilty by the Children's Court at Dubbo in respect of a charge that she on 2 May 2014 at Dubbo in the State of New South Wales did deface a wooden bench with a graffiti item. That charge is contrary to s 4(1) of the Graffiti Control Act, 2008. Through the solicitor from the Aboriginal Legal Service who appeared for her at the time, she appealed against the finding of guilt. 2. On 5 March 2015 that appeal came before me. The matter had been adjourned several times as the young person was at one stage contemplating having the matter litigated in the Supreme Court. After brief submissions on 5 March 2015 I took the view that the appeal should be upheld. I did not understand the Crown to dissent from this course. I made orders accordingly, and indicated that I would later give reasons. These are those reasons.