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. Defended Hearing 1. The hearing commenced on 26 August 2015 by way of a voir dire concerning the issue of doli incapax. The DPP provided a brief opening. I note that the opening related to the entire case, and not simply the doli incapax issue. For the purpose of determining that issue, I can only have regard to the evidence before me on the voir dire – material contained in an opening is of course not evidence. 2. By consent, the transcript of interview of the complainant AB was tendered (Exhibit VD1). Complaint was made very soon after the incident. In brief, AB told investigating officers that she was outside when NW took down her pants. She said "No…and he started doing it…..putting the stick up my bum and it hurt." The interview took place at a hospital the day after the incident. There is no evidence before me on the voir dire as to the extent of injuries, if any. 3. The complainant's grandmother (JF) gave evidence that a Department of Family and Community Services caseworker, Mr Thurston, asked her to take NW into her care (as a registered foster carer) on 2 May 2014. The young person remained in her care until the time of the incident on 12 February 2015. 4. JF was made aware by Mr Thurston that NW was to attend Rural New Street (RNS). A pamphlet from RNS, tendered by consent through the evidence of Detective Senior Constable Locke (Exhibit VD4) confirmed JF's evidence that RNS is a (specialised) counselling service for children who have sexually harmed another person. JF said that NW had his own case worker, Kate, who spoke with JF and NW every Monday about what NW is, and is not, allowed to do (e.g. not play with any child under his age); what games he is not allowed to play (e.g. Hide and Seek); what is good touching and what is bad touching. A Safety Plan was put in place. JF said that NW fiddled with his fingers and didn't react in any way when things were explained to him. 5. Detective Locke said that NW attended RNS from 2 June 2014 until 9 February 2015 (a period of 8 months and 1 week). The last attendance was 9 February 2015, though there was no evidence as to whether the incident of 12 February caused an end to his attendance, or whether he had simply stopped going from 9 February. 6. In July 2014, JF's grandchildren AB (the complainant) and K came to live with her. Around Christmas 2014, another of JF's grandchildren was at her home – a 5 year old, U. JF found NW holding U by the arms and rubbing U's head into NW's groin. She said that NW had been to so many meetings (with RNS). He was sent to his room. She asked him "Why have I put you in the bedroom?" NW said, "For touching U." 7. Another incident occurred in January 2015, when NW had AB on his shoulders taking her down the side of the house. Asked why he was going to his room this time, NW said, "For picking her up. I was getting her a drink." A photo was tendered by consent (Exhibit VD2) showing the rear yard of JF's home. She marked an area that NW was not allowed to take the children to. She also marked the area where the January incident occurred, saying that NW had been told 'everyday' not to take children to that area. 8. JF said that she was present with NW at RNS when Kate the case worker showed NW a diagram of a human body, male and female, front and back, with 'boobs, private parts and groin' marked. This was to do with the good touching/bad touching discussion. 9. In cross examination, it was suggested to JF that if the grandchildren cried, she would automatically blame NW. This was denied by JF, indicating that in such circumstances she would ask the girls first. It was suggested that NW was always being told that he had done something wrong. JF said that NW would be praised when he did something good. He might be taken to the park or bought something (e.g. a hat). An example of him doing something good was by mowing the lawns every Sunday. JF thought NW was good at computer games. He did not attend school in 2014 from the time of placement until the end of the year, but then commenced distance education. 10. I found JF to be a credible witness who did not embellish or exaggerate matters. 11. AM gave evidence. She said that there was an incident involving her 6 year old son TM and NW of a sexual nature, in January 2014. She took NW aside and spoke with him. NW said words to the effect, "It had happened to me in numerous other homes and that it is the right thing to do." AM told him, "It's never the right thing to do. It happened to me when I was younger and the people got into a lot of trouble for it." NW started crying and apologised, saying that he was "sorry that he'd done that." He promised "never to do it again" and that he would ask his carers (MR and RS) to help him with counselling. She said that NW looked up to her like an older sister. She told him that "the last person that did that to me went to gaol." NW cried. She said that NW did not always listen to her, but she believed him when he promised never to do it again. It should be noted that the care of NW was transferred from MR and RS to JF after this incident. I found AM to be a compelling, credible and honest witness. 12. MR was carer for NW from early 2013 for approximately 12 months. There was an incident with her grandson, TM (son of AM) of a sexual nature. She questioned NW about why he did what he did, to which he replied, "What? I didn't do anything wrong." I note that this conversation was not long prior to the conversation referred to above between AM and NW. MR said that she explained to NW about inappropriate touching "ten times over and another ten times". She was shown a document comprising 17 pages which included a Post Suspension Readmission Agreement relating to a school suspension. MR said that NW signed the document. There is reference in attached documents to the fact that he "enjoys praise and rewards; takes pride in his bookwork, and his written work is always presented neatly" (as at 17.9.12). There are comments in an Education Plan with the heading Young Person's Input on Education Plan which give some insight about NW's ability to reflect on his education. There was a further suspension in April 2014 for aggressive behaviour. 13. In a document from the school that he was attending dated 15 June 2014, it was noted that: … the student required explicit instruction to follow two step commands on a one to one basis with distractions removed to prevent incidents and or injuries from occurring to himself or his peers. The student was escorted to class as a result of excessive truanting. The student was supervised directly in the playground setting to prevent incidents of physical and verbal violence from occurring due to a lack of expressive and receptive skills and poor social skills. Further: The student was removed from the carer in the [town] setting due to an allegation made from the carer about the student. The student was part way involved in a cognitive and behavioural assessment being conducted in which the outcome resulted as mild intellectual disability processed whilst the student was awaiting a new placement out of the [town] area. The documents were tendered by consent (Exhibit VD3). No independent psychological evidence was tendered to support or rebut the words found in that document. 1. RS gave evidence. He is the partner of MR. Part of his evidence involved noticing that NW would masturbate profusely – 4 to 5 times a day. He found him lying on his back in the yard masturbating and said words to the effect, "I'm a boy, but it is disgusting to do it in public. Do it in private." Every time that he caught him masturbating, he would say not to do it. He caught him looking over the fence towards a neighbour in a pool, whilst masturbating. Eventually, RS gave up and told his wife. 2. JL was a former carer of NW from when he was 8 years old for a period of 18 months. Given his age at that time, it would be not appropriate in my opinion for me to take into account her observations of NW when he was that age. Her observations, if taken into account, would not assist NW. 3. AT was NW's case worker from FACS. He attended JF's place on 27 May 2014, very shortly after the placement commenced, and took NW for a drive to explain to him the reason about the change of placement. He said, "It was due to your behaviour and what had happened with a child in the previous placement", he couldn't be placed with other children. The issue of consequences for actions is raised again. He asked NW if he understood and he just nodded and put his head down. I am satisfied from AT's evidence that he believed that NW understood. He informed NW that RNS would start work with him, but did not explain what RNS was about. Case Law and Legislation 1. On the day of hearing, the NSW Court of Criminal Appeal handed down a decision on doli incapax: RP v R [2015] NSWCCA 215. Johnson J (agreeing with Davies J, with Hamill J reaching a different conclusion on count 3) held that "the doli incapax issue will be considered in the context of the developing understanding of a child which takes into account the child's previous acts, knowledge and experiences." 2. Davies J set out a number of legal principles, citing various decisions. In BP v R; SW v R [2006] NSWCCA 172 at [27] per Hodgson JA (Adams and Johnson JJ agreeing), reference was made to the modification to the common law regarding the criminal responsibility of children in NSW by s 5 Children (Criminal Proceedings) Act 1987, which provides that no child under the age of 10 years can be guilty of an offence. The common law presumption remains that a child aged between 10 and 14 is doli incapax, i.e. incapable of committing a crime because of a lack of understanding between right and wrong, with a lack of mens rea. It is incumbent on the prosecution to prove beyond reasonable doubt that the child not only did the act as charged, but that they also had the necessary element, and at the time, knew it was seriously wrong rather than being an act of "mere naughtiness or mischief". 3. In BP v R; SW v R at [28]: … the child must know that the act is seriously wrong as a matter of morality, or according to the ordinary principles of reasonable persons, not that it is a crime or contrary to law: Stapleton v The Queen (1952) 86 CLR 358, The Queen v M. 1. At [29], "evidence to prove the child's guilty knowledge must not be the mere proof of doing the act charged, however horrifying or obviously wrong the act may be": see C (A Minor) v DPP [1995] UKHL 15 at [38]. The court noted that C v DPP was said in R v CRH (Court of Criminal Appeal (NSW), 18 December 1996, unrep) to represent the common law in Australia, though it was strongly disapproved in the Victorian court of Appeal in R v ALH [2003] VSCA 129. 2. At [30], it was held that it was unnecessary to resolve the conflict as there was evidence in addition to the mere doing of the acts charged, noting that "there should not be a narrow view taken on what are circumstances of the offence that can operate as evidence." An example was given of evidence that could support the inference that "the accused knew what he was doing was causing great distress to another human being and as such was seriously wrong" – the victim crying, screaming, struggling and asking the accused to stop. It was said that such evidence, together with "evidence that the accused asked another person to stop the victim screaming and continued what he was doing after the victim said she would tell police", as well as a statement from another witness, was in Hodgson JA's opinion "plainly sufficient to base a finding by the jury, beyond reasonable doubt, that [the accused] had sufficient understanding of the wrongness of his conduct." 3. In RP v R at [36], Davies J cited C v DPP at [38]: 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. 1. In RP v R at [53]: A determination of whether a child aged between 10 and 14 years is doli incapax is a question of fact for a jury. It must also be acknowledged that determination of the issue is largely one of impression. Logic and reasoning take the matter only so far. There is no bright line between a realisation that an act or particular behaviour is simply naughty or mischievous and a realisation that it is seriously wrong. 1. In RH v DPP (NSW) [2014] NSWCA 305, citing the decision of Hoeben CJ at CL in RH v DPP (NSW) [2013] NSWSC 520 at [22], it was affirmed that "the test whether the prosecution had rebutted the presumption of doli incapax in favour of [the accused] was a subjective one." Factors that may rebut the presumption of doli incapax 1. The following factors go to the rebuttal of the presumption: 1. Previous consequences for actions of the young person, including: being moved to a different carer following a sexual incident prior to May 2014; being sent to his room following a sexual incident involving U; being sent to Rural New Street specialised counselling for children and young persons who have sexually harmed another person; frequently being reminded of rules, what behaviour is not appropriate, and being sent to his room following a sexualized incident with TM. 2. The fact that the young person underwent specialised counselling with RNS for in excess of 8 months, which included a Safety Plan, setting boundaries regarding what games were not to be played, and receiving instruction concerning good touch and bad touch or inappropriate touch areas including reference to a diagram of the body, with anterior and posterior aspects showing breasts, genital areas and the bottom. 3. The conversation held with AM following a sexual incident with TM which included words and actions consistent with an understanding that such actions are "never the right thing to do", including a promise never to do it again (early 2014) and an indication that he would ask his carer's to help him get counselling (noting counselling started in June 2014), and that he apologised and started to cry. 4. The removal of the complainant's pants despite the house rules, the Safety Plan, the counselling, the reminder of what is and is not appropriate. 5. The protestation of the complainant, aged 5, saying "No" to NW to both the removal of the pants and the subsequent assault with the stick. 6. The sexualized nature of the allegation – inserting a stick into the bottom of the complainant. 7. The insertion of a stick into the bottom of a 5 year old child is heinous. The application of a stick to the bottom of a 5 year old child is heinous. Either way, such acts are more obviously wrong than for example publicly masturbating whilst watching a neighbour in a pool. 8. The age of NW coupled with the nature of the offence alleged make it easier to rebut the presumption. 9. The incident on 12 February 2015 closely follows in time the incidents from Christmas 2014 and January 2015 which had consequences. 10. The nature of the incident is not identical, nor similar, to previous sexualized behaviour referred to in evidence, although the details of those incidents are sparse in these proceedings. There is no evidence of use of a stick or implement or weapon in previous incidents or any incident giving rise to some form of disciplinary action, whether at home or at school. 11. There is evidence of aggressive behaviour at school with consequences of suspension, and a signed acknowledgment as part of a post suspension interview accepting the consequences of his actions as well as future conduct (p 1, Exhibit VD3). 1. In RP v R at [159], Hamill J accepted that "evidence supported that the Applicant was of very low intelligence [borderline intellectual disability] and possessed a lesser appreciation of the seriousness of his conduct." Notwithstanding that, each Justice concluded that with respect to at least one count (count 2), doli incapax was rebutted, and by majority, with respect to 2 counts (counts 2 and 3) which occurred months apart. Whilst the modicum of evidence relating to the young person's mental state allows for a finding that the he is of low intelligence, I am not satisfied on the evidence that he possessed a lesser appreciation of the seriousness of his conduct for the matter before this court. 2. I have considered the evidence concerning the initial comments made to AM following the incident with TM, namely that due to things that he had experienced, he thought that (what he did) was the right thing to do. However, I note his promise to AM, his apology, his reaction of crying and the fact that the conduct referred to at that time did not involve the removal of the pants of a 5 year old and the use of a stick to assault that child in or on her bottom. I also observe the actions giving rise to the communication with AM occurred prior to the protracted RNS counselling, and prior to the apparent caring and disciplined care provided by JF. There is absolutely no suggestion that whatever the young person had previously experienced was of any similarity to the conduct complained of by AB. 3. In R v Hillier [2007] HCA 13 at [48], it was said that: Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal. 1. Under the circumstances, I am satisfied beyond reasonable doubt that NW knew that what he was doing was gravely or seriously wrong in a moral sense. Accordingly, I am satisfied to the requisite standard that the prosecution have rebutted the presumption of doli incapax. Orders 1. The presumption of doli incapax is rebutted. Magistrate P Stewart Nyngan 27 August 2015 ********** 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. Decision last updated: 17 December 2015