Director of Public Prosecutions (NSW) v NW [2015] NSWChC 3

Children's Court New South Wales

Medium Neutral Citation: Director of Public Prosecutions (NSW) v NW [2015] NSWChC 3 Hearing dates: 26 August 2015 Decision date: 27 August 2015 Jurisdiction: Criminal Before: Stewart LCM Decision: Presumption of doli incapax rebutted Catchwords: CRIMINAL LAW – aggravated indecent assault – doli incapax - rebuttable presumption – previous conduct – sexual harm counselling prior to alleged offending conduct – intellectual disability Legislation Cited: Children (Criminal Proceedings) Act 1987, s 5 Crimes Act 1900, s 61M(2) Cases Cited: BP v R; SW v R [2006] NSWCCA 172 C (A Minor) v DPP [1995] UKHL 15 R v ALH [2003] VSCA 129 R v CRH (Court of Criminal Appeal (NSW), 18 December 1996, unrep) R v Hillier [2007] HCA 13 RH v DPP (NSW) [2014] NSWCA 305 RH v DPP (NSW) [2013] NSWSC 520 RP v R [2015] NSWCCA 215 Category: Procedural and other rulings Parties: Director of Public Prosecutions (NSW) NW (the young person) Representation: Solicitors: Mr N Tran-Dinh (for the DPP) Mr P Payne (for the young person) File Number(s): 2015/50259 Publication restriction: Children (Criminal Proceedings) Act 1987, s 15A(1); Crimes Act 1900, s 587A

Judgment

The Charges and the plea 1. The young person, NW, was charged that on 12 February 2015 he committed an indecent assault upon a person under the age of 16 years, to wit 5 years. 2. He pleaded not guilty and the matter was set down for hearing. The issue for determination at this point is whether the presumption of doli incapax has been rebutted. The young person was approximately 13 years and 1 month old at the time of the alleged offence.