Children With Capacity For Criminal Responsibility

Grounds of Appeal

Discuss about the Children with Capacity for Criminal Responsibility.

In this case, there were two half- brothers who are involved in the offence, and at the time of offence complainant aged almost 6 years and 9 months whereas appellant aged almost 11 years 9 months. At the time of first offence, both the brothers were alone at home and there was no supervision of adult when elder brother grabbed the younger one and held him down. Elder brother put his hand on the mouth of the younger brother when younger brother crying and protest. Elder brother try to intercourse with the younger brother, and ceased to intercourse when feels that adult is returning to the house. Similar offence committed by elder brother when adult was not at home and both the brothers are alone at home. However, these facts are not in the question. The main issue was whether prosecution successfully proved that elder brother, being 11 at that time was aware that his actions were seriously wrong in a moral sense.

At the age of 17 and 18, the elder brother was assessed by the trial judge on the basis of disabled range of intellectual functioning, and trial judge found that his intelligence level was very low. Trial judge held that circumstances surrounded at the time of first offence proved without any reasonable doubt that presumption had been rebutted, and trial judge also stated that at the time of second offence presumption had been rebutted.

The sole and material issue for trial judge was whether prosecution successfully rebutted the presumption that the appellant in this case was doli incapax. Circumstances surrounded at the time of offence which satisfied the trial judge that appellant committed the offence after knew that his act was seriously wrong. Therefore, appellant was sentenced to an effective sentence imprisonment of the period of two years and five months with a non-parole period of 10 months. The Court of criminal Appeal agreed with decision made by trial judge, and Court stated that understanding of appellant that his actions are wrong at the time of first offence would also inform him at the time of second offence that his actions were wrong this time also.

The issue entertained by trial judge in this case was whether prosecution successfully rebutted the presumption that the appellant in this case was doli incapax. Trial judge was satisfied that the appellant committed the offence after knew that his act was seriously wrong, and The Court of Criminal Appeal agreed with decision made by trial judge.

Procedural History

Appellant appeal in the High Court against the decision of The Court of Criminal Appeal, and this appeal was allowed by the High court on the ground that there was lack of criminal responsibility in case of offenders less that age of 14 years. Both the offences committed by offender at the time when his age was 11 to 12 years. It is general presumption that offender under the age of 14 years was not responsible because of crime committed by him. A child offender who was under the age of 14 years is not responsible for the crime committed by them, but exception is there which stated that offender under the age of 14 years is responsible for his or her offence if sufficient evidence are there to prove that offender was aware that his actions are seriously wrong, and his act is different for naughtiness and mischief.

Reasons provided by trial judge: At the trial, use of condom by appellant was considered as the sufficient evidence to presume that appellant has the capacity to understand the moral wrongness of the act conducted by him at the time of offence. Trial judge does not give much preference to the evidence of condom for the purpose of determining whether the presumption related to doli incapax of the appellant was rebutted.

His honor further stated that appellant was of very low intelligence at the time of offence. However, His Honor was satisfied that circumstances surrounded at the time of offence clearly stated that appellant clearly knew that his conduct was not right. Trial Judge consider various circumstances such as force used by appellant, appellant place his hand on the mouth of complainant, complainant’s evident distress, ceased to conduct intercourse when adult returned at home, and instruction made by appellant to complainant for not disclosing anything.

The Court of Criminal Appeal: each member of the Court of Appeal rejected the contention that reasons provided by trial judge for second offence was unreasonable. Johnson J agreed with the reasons provided by Johnson J because he considered the difference between the knowledge related to moral wrongness of action and whether action is merely considered as naughtiness and mischief. In this both the parties considered the use of condom by appellant. On the behalf of the appellant, it was stated that behavior of appellant was sexualized but he did not realized that his conduct was seriously wrong. Prosecution argued on the behalf of this statement and stated that use of the condom is the clear evidence which shows the appellant’s “preparation for, and knowledge of, wrongdoing”.

Arguments on Behalf of the Appellant and the Respondent

On behalf the appellant, argument was stated that behavior of appellant was sexualized behavior but at the time of offence his age was only 11 and he is not able to realize that his conduct was seriously wrong. Appellant further stated that his act was merely the act sexual play, and it’s common for children’s to engage in such play and keep such act secret. Action conducted by appellant was beyond ordinary childish sexual experimentation, but this does not state that he understood his conduct was seriously wrong.

Prosecutor stated that act of appellant cannot considered as the act of childish sexual experimentation because circumstances surrounded at the time of offence clearly shows that appellant clearly know that his act was morally wrong such as condom used by the appellant shows that he knows that his action was seriously wrong.

High court allowed the appeal filed by appellant against the decision made by the New South Wales Court of Criminal Appeal on the basis of presumption that if age of the offender was less than 14 years then there was lack of criminal responsibility. Therefore, Court unanimously allowed the appeal made by appellant. The plurality of Judges that was Kiefel, Bell, Keane and Gordon JJ, held that presumption was not rebutted by the prosecution because they does not produce sufficient evidence to prove that appellant is understood the moral wrongness of the act even in case of intellectual limitations. However, conduct of appellant was beyond the ordinary childish sexual experimentation but this fact cannot be considered as appellant knew his act was morally wrong and does not considered as naughty or mischief act.

Evidence related to use of condom by appellant was important and ought not to have been ignored by the appellant judges and they stated appellant at the age of 11 years have complete knowledge of anal intercourse and need to use condoms, and such things clearly state that appellant has complete knowledge of what is right and wrong. He knows how to use sexually explicit materials or had been abused.

Finally, it is not possible to assume that child of 11 years and 6 months understands that inflicting hurt and distress on sibling results in serious wrongdoing, and evidence is also need which shows that there was lack of consent and observation of brother’s distress. Evidences are also not there which shows development, upbringing, and school performance of the appellant because of his intellectual limitations because of which it is not possible to conclude that he is aware about the seriousness of his act.

Gageler J allowed the appeal on the fact that whether evidence provided at the trial was not sufficient to prove that appellant understood that intercourse was serious wrong as per adult standards. Transcript presented by police after several years showed that behavior of appellant was not considered as normal childish behavior and he is able to understand that he get punishment if someone sees him. Other evidences related to mental capacity of the appellant shows the clear difference between the intellectual disability of the appellant and evidence related to cognitive development at the time of commitment of offence. Consequently, capacity of appellant to understand his actions were seriously wrong by normal adult standards was an unanswered question, and therefore evidences do not support the findings of trial judge related to guilt.

References:

Time base, “RP v The Queen [2016] HCA 53: Children with Capacity for Criminal Responsibility”, < https://www.timebase.com.au/news/2016/AT04028-article.html>. Accessed on 23^rd March 2017.

Austlii, “Supreme Court of New South Wales – Court of Criminal Appeal”, < https://www.austlii.edu.au/au/cases/nsw/NSWCCA/2015/215.html>. Accessed on 24^th March 2017.

Austlii, “High Court of Australia”, < https://www.austlii.edu.au/au/cases/cth/HCA/2016/53.html>. Accessed on 24^th March 2017.

Melbourne  Law school, “RP v The Queen”, https://blogs.unimelb.edu.au/opinionsonhigh/2016/12/21/rp-case-page/>. Accessed on 23^rd March 2017.

High court, “HIGH COURT OF AUSTRALIA”, < https://eresources.hcourt.gov.au/downloadPdf/2016/HCA/53>. Accessed on 24^th march 2017.

High Court, “RP v THE QUEEN [2016] HCA 53”, https://www.hcourt.gov.au/assets/publications/judgment-summaries/2016/hca-53-2016-12-21.pdf. Accessed on 24^th March 2017.