Law Article by: Geoff Harrison | Sydney Criminal Barrister | Sydney Criminal Lawyer | First Published: 10/05/2012
The law relating to doli incapax is a common law presumption that must be rebutted by the prosecution beyond a reasonable doubt. To rebut the presumption, the prosecution must prove beyond reasonable doubt that a child between 10 and 14 knew that what he or she was doing was seriously wrong, not merely naughty or mischievous.
The case below sets out the principles in relation to this common law presumption.
BP v R, SW v R  NSWCCA 172 (1 June 2006)
CITATION: BP v. Regina, SW v. Regina  NSWCCA 172
HEARING DATE(S): 10 May 2006
DECISION DATE: 01/06/2006
BP - appellant
SW - respondent
Regina - respondent
JUDGMENT OF: Hodgson JA Adams J Johnson J
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): DC04/31/0032, DC04/31/0033
LOWER COURT JUDICIAL OFFICER: Freeman DCJ
Mr. M. Austin for BP
Mr. R. Button SC for SW
Mr. D. Frearson for respondent Crown
Many Rivers ALS Newcastle for appellants
S. Kavanagh, Solicitor for Public Prosecutions, for respondent
APPEAL AGAINST CONVICTION - Appellants aged 11 and 12 at time of alleged offences - Doli incapax - Need for prosecution to prove beyond reasonable doubt that child between 10 and 14 knew that what he or she was doing was seriously wrong, not merely naughty or mischievous - Whether directions adequate - Whether jury's verdict reasonable.
1. Appeal of BP dismissed.
2. Appeal of SW dismissed.
IN THE COURT OF
Thursday 1 June 2006
BP V. REGINA
SW V. REGINA
1 HODGSON JA: On 30 August 2004, the appellants BP and SW appeared before Freeman DCJ on an indictment containing four counts, each relating to events that took place at Kempsey on 5 November 2003. Each count was to the effect that the person or persons charged did have sexual intercourse with LD without her consent knowing that she was not consenting in circumstances of aggravation, namely being in the company of another person. The counts related to two incidents of alleged sexual activity: the third and fourth counts related to the first-occurring incident, which occurred on a grassed area near an oval at Kempsey; and the first and second counts related to the second-occurring incident, which occurred behind a nearby tree.
2 The first count charged both BP and SW, and was based on an allegation of digital penetration. The second count also charged both BP and SW, and was based on an allegation of penile/vaginal intercourse. The third count charged BP alone, and was based on an allegation of digital penetration. The fourth count charged SW alone, and was based on an allegation of digital penetration.
3 The appellants pleaded not guilty to all counts, and a trial proceeded before a jury.
4 On 3 September 2004, the jury returned the following verdicts: on the first count, both not guilty; on the second count, BP guilty of sexual intercourse without consent simpliciter, SW not guilty; third count, guilty; and fourth count, guilty.
5 Subsequently the following sentences were imposed. As regards BP, on the count involving digital penetration, the trial judge deferred passing sentence upon him entering into a three year bond, with various conditions; and on the count involving penile penetration, the trial judge sentenced him to 3 years’ imprisonment, with a non-parole period of 12 months. As regards SW, the trial judge sentenced him to 2 years’ imprisonment, suspended upon his entry into a bond.
6 Both BP and SW have appealed from their convictions, on grounds relating to the issue of doli incapax, that is, on the issue whether each of them, being under the age of 14, had sufficient understanding of what he was doing to be criminally responsible for it.
7 BP and SW are two Aboriginal boys, aged respectively 12 and 11 years at the time of the relevant events. BP had been born on 12 March 1991, and SW had been born on 25 May 1992.
8 Evidence for the Crown was given by the complainant LD, who was 16 years old at the time of the events, by her cousin DS, who was then 11 years old, by her second cousin DD, who was then 14 years old, by the complainant’s aunt and by a medical practitioner and police officers.
9 LD’s evidence was to the effect that she and DS were walking across Verge Street Oval in Kempsey when BP called out to her. BP was with SW and DD. She said BP ran up to her, and among other things, asked her for cigarettes; and that he then walked her to a patch of grass, tripped her so that she fell, and pulled her pants and underpants down to her ankles. He then put his fingers in her vagina as she lay screaming and crying. He called SW over, and BP told SW to “put your hand over her mouth so she doesn’t scream”. SW did this, and BP laughed and kept moving his fingers. SW then told BP to move his hand, which he did, and then SW put his fingers in LD’s vagina. LD moved on to her stomach, and as she tried to get up, SW, whilst on his knees, put his penis “in my arse with both our clothes on”. He laughed and she cried.
10 LD’s evidence was that she then got up and pulled her pants up, and after this BP put his arm around her and took her behind a big tree 10 or 20 steps away. BP continued to laugh and LD asked him to let her go. Behind the tree, BP pushed LD to the ground and pulled her pants down to her ankles. BP pulled his pants down and inserted his penis in her vagina and went up and down. LD gave evidence of him also inserting his fingers into her vagina, but in cross-examination she said this only occurred on the grass (this presumably explaining the not guilty verdict on the first count). LD screamed and tried to kick him off, and hit him once. She told him to move or get off numerous times. He asked her not to tell anyone. She said “I’m going to tell the police on you”, and he said “Don’t do that”; and he continued to do what he was doing.
11 LD’s evidence was that SW watched these events from the other side of the tree. BP threatened to bash him and threw a stick at him. SW ran around the tree and continued to watch. When BP got up, LD went with DS to a phone box and called DS’s mother (LD’s aunt) and told her “[B] and [S] raped me”. The aunt then came and took LD to the police.
12 DS gave evidence generally consistent with LD’s evidence, although he was not in a position to see what happened behind the tree. LD’s aunt gave evidence that she received a phone call from LD at about 2pm on 5 November 2003, in which LD said she had been raped by both BP and SW, and she said that LD was crying and upset.
13 DD’s evidence concerning the incident on the grassed area was not consistent with LD’s evidence, particularly in that he gave no evidence that LD cried or screamed. He also said that when SW put his hands in LD’s underpants, he told SW not to do this and he stopped. DD’s evidence was that LD went with BP behind the tree without being held by BP and walked there calmly. He did not hear LD cry or scream from behind the tree, although he did say that afterwards she was upset.
14 A medical practitioner Dr. Caine gave evidence of an examination of LD on 5 November 2003, at which he found superficial scratches on her legs and left buttock, and found the genital area normal and consistent with either consensual or non-consensual digital and penile penetration.
15 Detective Leading Senior Constable Ismay gave evidence that he saw LD and her aunt at Kempsey Police Station at about 2.30 pm on 5 November 2003, and that LD appeared upset, and was crying and red in the face. At 6pm he did an electronic interview with BP, which became an exhibit in the case: in that interview, BP admitted he had sexual intercourse with LD, but said it was consensual.
16 Detective Senior Constable Rutledge gave evidence of the arrest of SW. He said he then saw SW and his elder sister at Kempsey Police Station, and after an ALS solicitor had spoken to them, he formally warned SW and asked if he wanted to talk to police about the matter. SW said “No because I didn’t do nothing”. The police officer then said “Do you know that it is wrong to assault or hurt or touch anyone if you don’t want them to [sic]?”, to which SW nodded his head and said “yes”.
17 Two statements were tendered by the Crown on the issue of doli incapax. As against SW, there was the statement of Ms. Jeannette Liva, as follows:
I completed a Bachelor of Arts, with a double major In Psychology in 1999 at the University of Western Sydney. I completed a Diploma of Forensic Psychology at the University of Western Sydney in 2000. I am currently registered as an intern psychologist.
I interviewed [SW] on the 17th of June 2003. This interview was with [SW] by himself. During this interview I discussed with [SW] his sexualized behavior. [SW] initially demonstrated minimal understanding of consent and boundary issues relating to sexual behavior. I talked to [SW] about inappropriate sexual behaviors. He appeared to understand and was able to verbalize what was right and wrong in relation to sexual behaviors. It is my opinion that [SW] understood the difference between appropriate and inappropriate sexual behavior.
18 As against BP, there was a statement of Ms. Lynette Dockrill, as follows:
I am the assistant principal of the West Kempsey Primary School in Marsh Street, West Kempsey. I have been employed by the New South Wales Department of Education for a period of 28 years, and have been teaching at West Kempsey Primary School for a period of five years.
During 2000, I met a student by the name of [BP]. [BP] was at the time in Year 5. I also had him in my class whilst in Year 8. In 2001 [BP] was placed in the Achievement Class as he had demonstrated academic potential. I believe that [BP] was quite capable and able to complete set tasks and follow directions. I maintained an excellent rapport with [BP] whilst he was under my care and control in the classroom.
I was however aware that [BP] had social problems when mixing with other students and accepting authority from anyone. I was also aware that he had been placed on the Itinerant Support Teacher for Behaviour, Miss Janice PRINCE. Her role was to counsel and support [BP] with his social needs whilst at school, and in particular in the playground. I witnessed a number of incidents involving [BP] having altercations with other students, and being both verbally and physically violent towards them.
On many occasions as his class teacher in 2001, I spoke to [BP] about the inappropriateness of his behaviour and what he could do to remedy the problems. I could say that it was a daily occurrence that I would speak to [BP] about his behaviour, and on these many occasions I told [BP] that what he was doing was wrong, and unacceptable in our society. I frequently said to him, “You can’t go around hitting and hurting people.” On these occasions when I was counselling him over his behaviour, [BP] appeared to accept what I was telling him as he would quiten (sic) down and drop his head. He appeared remorseful for his actions when I explained to him that what he was doing was wrong.
I was present with the principal at the time, David WILLARD, Ron BROWN (Deputy Principal), Bertrick CLOSE (Aboriginal Education Assistant), Janice PRINCE, [BP], and his parents then (sic) a Resolution Meeting was held at the school on the 12th of February, 2001.
[BP] was counselled during the meeting by Mr. WILLARD, in the presence of his parents, as to his inappropriate behaviour including physical attacks on students and teachers, intimidation, defiance, and swearing. I recall that [BP] acknowledged that he had failed to comply with behavioural standards, by answering “Yes” in understanding that he had done wrong.
19 No evidence was given either by or on behalf of SW or BP.
DIRECTION TO JURY
20 In directing the jury as to the elements of the first count, the trial judge said this about the impact of doli incapax in relation to BP:
The fourth essential element, or fifth I suppose if one counts the circumstance of aggravation, is the Crown has to prove, because of the age of these two young persons, the Crown has to prove that each of them knew that what they were doing was wrong, very wrong. The prosecution must prove beyond reasonable doubt that the child accused did the act charged and that when doing that act he knew it was a wrong act, as distinct from an act of mere naughtiness or childish mischief, and 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 have to determine, from a review of the evidence, whether it is satisfactorily proved, that is beyond reasonable doubt, that at the time [BP] did that which he is accused of doing, put his finger or fingers into [LD] behind the tree, if you find that was done, that he had a guilty knowledge that he was committing a crime. You do not have to find that he knew exactly which section of the Crimes Act he was breaching but he had to know that it was a serious act, that he was committing a crime and not being just naughty and mischievous or the like.
Now the Crown relies, for that purpose, upon the act itself and upon the evidence which was led this morning, including in particular the statement of Ms Dockrill when she - I will not go through the whole statement but the burden of the Crown argument is that for some time prior to this during 2000 and 2001 Ms Dockrill had a deal to do with [BP], that she went through with him what was wrong and what was acceptable in our society and so on, you cannot go around hitting and hurting people, and so on. So the Crown says you would accept beyond reasonable doubt that at the time at which he put his fingers into [LD] behind the tree, if you accept that that was done beyond reasonable doubt, then he did know that that was a very seriously wrong thing to do and not just being mischievous or naughty.
21 He then gave directions concerning SW’s alleged role as an aider and abetter in relation to that count, and continued:
And the Crown has to prove also that at the time of offering this support, being an aider and abetter to this action, that [SW] knew, as I have just defined for you, that what was going on, what he was taking part in, was not mischief or naughtiness, it was a serious wrong. He had to know that it was a crime that was going on, and in relation to that the Crown relies upon the evidence of Ms Liva who, you will recall, in very short form said that she was a psychologist, that she had occasion to interview [SW] 17 June 2003, that is some months before this took place, and she recounts that he appeared to understand and was able to verbalise what was right and wrong in relation to sexual behaviours.
So if you accept her evidence, it is not subject to any challenge, but nonetheless it is the evidence of an expert, which you are not obliged to accept, experts are people who, unlike the rest of us, are entitled to come along because of their experience and training and offer opinions. The rest of us, as lay persons, are only allowed to come and give evidence of what we heard or saw or experienced. Whereas experts, because of their training and experience, can come and give opinions to assist juries. Juries do not have to accept what they say, it depends whether it accords with your own commonsense and so on, but that is her expert opinion, that he knew the difference between right and wrong sexual behaviour as at June 2003. So that is the first count.
22 The trial judge then dealt with the second count, and said this:
So you can be satisfied it appears to be conceded that there was an act of sexual intercourse. Of course there is still dispute as to whether it was without consent, whether [BP] knew that there was an absence of consent and the Crown still has to establish beyond reasonable doubt that [BP] knew that (a) there was no consent and (b) that what he was doing was a serious wrong and not just mucking around, if you like, to use an expression which I suppose was current when I was a kid, I do not know whether it still is, but mischief or simple naughtiness.
Again the Crown charges that on the basis of [BP] doing the act, [SW] providing the support being an aider and abetter in circumstances of aggravation, that is they were in company, [SW] close enough to support [BP]. If you found that that allegation was made out in its entirety, that there was an act of sexual intercourse, with which you will have no difficulty, it was without consent that he knew that she was not consenting, that he understood that what he was doing was committing a crime, but you were not satisfied that [SW] was there in company, then again you could find, on that count, him guilty of the charge of sexual intercourse but not in the circumstances of aggravation.
23 The trial judge then dealt with the elements of the third and fourth counts, and concluded:
The Crown has to prove in relation to those things in relation to each accused of course that each knew that, had this guilty knowledge, that they were committing a crime, not doing something which was just mischievous, and relies upon the evidence that I have recounted to you already from Ms Dockrill and Ms Liva.
ISSUES ON APPEAL
24 BP has relied on two grounds:
1. The trial Judge erred in his directions to the jury as to what knowledge of serious wrongdoing held by the young accused was required by the prosecution to be proved for the presumption of doli incapax to be rebutted, resulting in a substantial miscarriage of justice requiring that the guilty verdicts of the jury be set aside with no new trial order.
2. The trial judge erred in his summation to the jury as to what knowledge of serious wrongdoing had been shown to be held by each accused and what degree of knowledge of that wrongdoing could be inferred from statements of Ms Janet Liva and Ms Dockrill (see submissions) resulting in a substantial miscarriage of justice and requiring that the guilty verdicts of the jury be set aside with no new trial order.
25 SW also relies on two grounds:
1. There has been a miscarriage of justice in that his Honour mis-directed the jury about doli incapax.
2. There has been a miscarriage of justice in that the verdict of guilty is unreasonable and unable to be supported with regard to doli incapax.
26 The issues overlap, and I will proceed by considering first the law as to doli incapax, and then the submissions for BP and SW. I will then give my decision.
LAW ON DOLI INCAPAX
27 The common law concerning the criminal responsibility of children has been modified in New South Wales by s.5 of the Children (Criminal Proceedings) Act 1987 (which provides for a conclusive presumption that no child under the age of 10 years can be guilty of an offence), but not otherwise. Accordingly, as regards a child between 10 and 14 years, there remains a presumption that such a child is doli incapax, that is incapable of committing a crime because of lack of understanding of the difference between right and wrong, and consequential lack of mens rea. It is clear that when a child between 10 and 14 years is accused of a crime, the onus is on the prosecution to prove beyond reasonable doubt not only that the child did the act charged, accompanied by the necessary mental element, but also that, when doing it, he or she knew it was seriously wrong, as distinct from an act of mere naughtiness or mischief: The Queen v. M (1977) 16 SASR 589; C v. DPP  UKHL 2;  1 AC 1 at 38; R v. CRH, NSWCCA, 18/12/96; R v. ALH  VSCA 129; (2003) 6 VR 276.
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  HCA 56; (1952) 86 CLR 358, The Queen v. M.
29 It has been said that 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: C v. DPP at 38. This was said in CRH to represent the common law of Australia; but it was strongly disapproved by the Victorian Court of Appeal in R v. ALH at  and -. However, on either view, the circumstances of the offence, such as concern to avoid detection, may be some evidence of knowledge; although, if the concern is consistent with the child thinking that the act is merely naughty, this will carry little weight.
30 It is not necessary to resolve this conflict in this case, because there was evidence in addition to the mere doing of the acts charged. However, I would say that, even if the view expressed in C v. DPP and CRH is correct, there should not be a narrow view taken on what are circumstances of the offence that can operate as evidence. For example, in the present case, assuming the jury accepted LD’s evidence that she was crying and screaming and struggling and asking BP to stop, these would in my opinion be factors that could support the inference that BP knew that what he was doing was causing great distress to another human being and as such was seriously wrong. That evidence, coupled with the evidence that BP asked SW to stop LD screaming, that BP continued what he was doing after LD said she would tell the police, and the statement of Ms. Dockrill, was in my opinion plainly sufficient to base a finding by the jury, beyond reasonable doubt, that BP had sufficient understanding of the wrongness of his conduct.
31 I will briefly summarise the submissions for each appellant.
32 For BP, Mr. Austin submitted that the summing up failed to give the jury any assistance on the question of how the evidence in the case bore on the issue of whether BP had the requisite understanding. In particular, the summing up did not advert to the significance of the evidence of DD suggesting little overt objection from or suffering by LD, and it left the jury with the impression that the evidence of Ms. Dockrill, on its own, was sufficient to rebut the presumption.
33 For SW, Mr. Button SC submitted that the trial judge did not state the relevant test clearly: he said variously that it had to be shown that SW knew what he did was wrong, was very wrong, was a serious act, was a crime, was very seriously wrong, and was a serious wrong. This was confusing to the jury. The jury could have reasoned on the basis that there are trivial crimes that could be considered not seriously wrong.
34 Mr. Button further submitted that, in the circumstances, the jury could not reasonably have been satisfied, to the requisite standard, that SW knew that the act constituting count 4 was seriously wrong. He was only 11 years old at the time. BP was the moving party with regard to the whole incident. SW was laughing at the time. When told what he was doing was wrong, he desisted. At the time of the incident behind the tree, SW was childishly running back and forth and peeking at them. Afterwards, he was crying with regard to a missing $10 note. Further, SW remarked that BP could be in trouble, but said nothing about possible consequences for himself. He put his hand over LD’s mouth at the request of BP. The evidence of Ms. Liva, concluding that he had some understanding of the difference between appropriate and inappropriate sexual behaviour, did not support a finding that he knew what he did was seriously wrong.
35 On Mr. Button’s first submission, in my opinion there is no clearly established form of words that must be used in a direction on this question. What is important is to bring home to the jury that the Crown must prove beyond reasonable doubt that the accused, at the time of doing the act, knew it was seriously wrong, and not mere naughtiness or mischief. In this summing up, I do not think the reference to “crime” was such as to divert the jury’s attention from the essential question, which in my opinion was sufficiently indicated in the directions. In my opinion, this view is confirmed by the circumstance that no objection was taken to the summing up at the time.
36 As regards Mr. Austin’s submission for BP, I note that no complaint is made on appeal about the judge’s directions on facts generally. The complaint that is made is that the summing up did not relate the factual issues to the issue concerning doli incapax. In my opinion, it was not an error not to do so, and certainly not an error such as would give rise to a miscarriage of justice. The trial judge did not direct the jury that the evidence of Ms. Dockrill on its own was sufficient. Rather, he said that the Crown relied on the act itself, and on Ms. Dockrill; and in my opinion, that reference to “the act itself” was apt to direct the jury’s attention to factors such as those referred to in par. above. Again, in my opinion it is of some significance that no complaint about this direction was made at the trial.
37 Mr. Button’s submissions for SW on the second ground of appeal raises more difficult questions. Certainly, the Crown case on the issue of doli incapax was less strong against SW than against BP.
38 I would comment at once that the statement to the police officer should be considered as of no weight. It was not in fact referred to in the summing up, although it had been relied on in the Crown’s address to the jury. In my opinion, it was wrong for the police officer to seek an admission as to an element which the prosecution had to prove, after SW said he did not want to talk to the police. Further, the assent to the proposition that something was “wrong”, put to SW by the police after his arrest, was in my opinion of no value in establishing that, at the time of the events, SW knew what he did was seriously wrong rather than merely naughty or mischievous.
39 The statement of Ms. Liva, the evidence that, at BP’s request, SW put his hand over LD’s mouth to stop her screaming, and the evidence that, during the time of his digital penetration of LD, she was crying and screaming and struggling, was evidence supporting the proposition that SW knew what he was doing was seriously wrong. In so far as SW relies on DD’s evidence, as to SW stopping when he was told what he was doing was wrong, and as to SW childishly running back and forth and peeking at what was happening behind the tree, this is not evidence that this Court must accept. The conviction of BP on count 2 suggests that the jury did not accept DD’s evidence.
40 The assessment of whether the Crown had proved beyond reasonable doubt that SW knew that what he was doing was seriously wrong is very much a matter to be determined by a jury, rather than by this Court on appeal. In all the circumstances, I am not satisfied that the jury’s verdict was unreasonable and should be set aside on that basis.
41 For those reasons, in my opinion the following orders should be made:
1. Appeal of BP dismissed.
2. Appeal of SW dismissed.
42 ADAMS J: I agree with Hodgson JA.
43 JOHNSON JA: I agree with Hodgson JA.