The High Court has allowed an appeal against a decision of the New South Wales Court of Criminal Appeal on the presumption of lack of criminal responsibility by offenders under 14 years of age. The appellant was 11 to 12 years old when he allegedly sexually abused his younger brother on two occasions. A child offender under 14 years old is presumed to not be responsible for his or her crimes, though this presumption can be rebutted by evidence that the offender was aware that the conduct was seriously wrong, as distinct from an act of ‘mere naughtiness or mischief’ (see NSWCCA at ). The NSWCCA unanimously upheld the trial judge’s ruling that the presumption was rebutted by evidence that the appellant was aware of his victim’s distress, and was concerned that his actions would be discovered, showing that he knew the conduct was seriously wrong. The NSWCCA was divided, however, on whether that reasoning also applied to the second abuse, where there was no evidence of distress or concern. The Court of Criminal Appeal also unanimously held that the presumption was rebutted in another later instance where the appellant ceased his conduct when the complainant said he was ‘sick of’ what the appellant had done. Ultimately the NSWCCA upheld the trial judge’s sentence of two years and five months imprisonment.
The Court unanimously allowed the appeal. The plurality (Kiefel, Bell, Keane and Gordon JJ) held that the presumption was not rebutted because the prosecution failed to adduce evidence, beyond the circumstances of the offences, to establish that despite his intellectual limitations the appellant understood the moral wrongness of his acts (at ). While the conduct here went beyond ‘ordinary childish sexual experimentation’, that did not necessarily mean that the appellant thought it to be morally wrong, as opposed to ‘rude or naughty’ (at ). Further, evidence that the appellant used a condom was significant and ought not to have been disregarded by the appeal judges: that the appellant at the age of 11 years and six months knew about anal intercourse and the need to use condoms suggested he had been exposed to sexually explicit material or had been abused, and yet the prosecution did not adduce evidence to clarify details of his environment or upbringing (at ). Finally, it cannot be assumed that a child of 11 years and six months understands that inflicting hurt and distress on a sibling constitutes serious wrongdoing, and clear evidence beyond implications drawn from the appellant’s observations of his brother’s distress and lack of consent were needed (at ). Absent further evidence on the appellant’s development, upbringing, and school performance, it was not open to conclude that the appellant, with his intellectual limitations, was proved beyond reasonable doubt to have understood that his conduct was seriously wrong in a moral sense (at ).
Gageler J also allowed the appeal, holding that on the totality of the evidence adduced at trial, a reasonable doubt remained as to whether the appellant understood the intercourse was seriously wrong by normal adult standards (at ). While the transcript of the police interview several years later showed that the appellant’s conduct went far beyond ‘normal childish behaviour’ and that he knew he would be subject to some kind of punishment if found out (at ), the other evidence relating to his mental capacity and his significant intellectual disability exposes a significant gap in the evidence as to the appellant’s cognitive development at the time of the alleged offending (at –). Consequently, his capacity to understand that the conduct was seriously wrong by normal adult standards remained a ‘real and unanswered question’ (at ), and thus the evidence could not support the trial judge’s finding of guilt.
|High Court Judgment|| HCA 53||21 December 2016|
|High Court Documents||RP v The Queen
|Full Court Hearing|
|Special Leave Hearing|| HCATrans 162||21 July 2016|
|Appeal from NSWCCA|| NSWCCA 215||26 August 2015|
|Trial Judgment, NSWDC
||Case No 2012/330538||5 December 2014|