SUPREME COURT OF QUEENSLAND

[1]  HOLMES JA:  I agree with the reasons of McMurdo J and with the order his Honour proposes.

[2]  McMURDO J: After a trial in the Childrens Court by a judge alone, the appellant was convicted of one count of rape and one count of attempted rape.  The rape was alleged to have occurred on 13 May 2007 and the attempted rape on a date unknown between 14 May 2007 and 9 October 2007.  The appellant was born on 1 December 1994 so that he was aged between 12 years and 5 months and 12 years and 10 months at any material time.

[3] At the outset of the trial, the appellant’s counsel admitted each element of the offences, save for that of capacity.  Section 29(2) of the Criminal Code provides:

“29(1)…

(2)A person under the age of 14 years is not criminally responsible for an act or omission, unless it is proved that at the time of doing the act or making the omission the person had capacity to know that the person ought not to do the act or make the omission.”

The trial judge was satisfied that he had that capacity in each case and accordingly found him guilty.  The appellant is yet to be sentenced.

[4] By s 116 of the Juvenile Justice Act 1992 (Qld), ch 67 of the Criminal Code (relating to appeals or applications for leave to appeal) applies with necessary modifications in relation to a finding of guilt in a proceeding before a Childrens Court judge, sitting with or without a jury, as it applies in relation to a proceeding before the District Court.  According to the notice of appeal there are two grounds for this appeal against each conviction.  The first is that the verdict was unreasonable in the circumstances and against the weight of the evidence.  The second is that his Honour gave insufficient weight to the evidence of the psychiatrist who was called in the defence case.  In substance however, that second complaint was argued as part of the first ground.  The question on each conviction is whether upon the whole of the evidence it was open to the trial judge to be satisfied beyond reasonable doubt that the appellant was guilty.[1]

[5] The complainant in the first count was a boy aged about four years.  A 13 year old boy heard the complainant call out from under a house where a number of children had been playing.  The boy went to investigate and saw the complainant holding his bottom.  The appellant was present when the complainant said that the appellant put “his dick in my bum”.  The appellant said “no, I didn’t” and then left the scene.

[6] At the time of that first offence, the appellant was living with his mother.  Shortly afterwards, the appellant’s mother rang his father who lived elsewhere.  She asked him to take the appellant into his care and he agreed.  A couple of days after that happened, two police officers came to his house and told the father that they were investigating the appellant for sexually assaulting a child.  When the police had left, the father confronted the appellant, asking him what he had done.  At first the appellant did not answer and then said he did not know.  His father suggested that he had “molested a kid” and asked him where this had occurred.  The appellant said underneath a house.  The father said it was wrong to touch another child to which the appellant replied it had been done to him.  The father said that the same had happened to him but that “I don’t go touching any kid”.

[7] In June or July of 2007 (according to the father’s statement which was tendered at the trial), the appellant’s father was told by another of his children that she had just seen the appellant underneath their house with a younger sibling (the three year old boy who was the complainant in the second count).  This girl’s evidence of what she had seen, as related to police officers in a recorded interview, was the evidence of the second count.  The effect of her evidence was that the appellant was about to do what he had done on the occasion of count one but that he desisted when she arrived and told him to stop.

[8] The evidence of the father and that of his daughter was not challenged.  Although the date of the second event was unknown, it was at least open to the judge to conclude that it occurred after the event the subject of count one, and after the appellant had been confronted by his father about that event.

[9] In the prosecution case, several witnesses were called to prove capacity.  The appellant’s grandfather and grandmother gave evidence of an incident when the appellant was about six years old.  The appellant had touched his younger brother when they were showering together and the grandfather had told him that it was the wrong thing to do and had hit him with a belt as punishment.  The appellant was said to have replied that he was sorry.  The grandmother said that she had told the appellant that it was just “not on” to do such a thing and that he could go to gaol for things like that. 

[10]  The appellant’s father gave evidence of the confrontation after the first count to which I have referred.  The appellant then told his father that he had done this because he was “horny”.  The father was allowed to give evidence that he believed the appellant understood that what he had done was wrong.  The father’s partner gave a similar account, and described that when she confronted him the appellant stood with his head down. 

[11]  The prosecution also called a policewoman who had interviewed the appellant, in the presence of a solicitor, in October 2007.  The audiotape of that interview was tendered.  The appellant had declined to be interviewed but subsequently agreed on the basis that he would not be asked questions relating to the events of the offences.  The clear purpose of the interview was to investigate the subject of the appellant’s capacity.  There was no objection to the tender of the tape at the trial and nor is there any complaint about that on this appeal.

[12]  In the course of that interview, the police officer put a number of hypothetical questions to the appellant.  For example, he was asked to assume that a boy had gone into a shop, taken a Mars bar and walked out, and the appellant was asked whether he could “pick out what he’s done wrong?”  The appellant replied “he’s stolen the Mars bar”, and when asked why he said that, the appellant replied, “because he didn’t pay for it”.  He was asked whether that was the right thing or the wrong thing to do and answered, “the wrong thing to do … because it’s bad to do”.  He added that his mother had told him that it was a bad thing to do and that “you’re going to go to hell for it”.  He was asked similar questions about hypothetical events such as picking up lost property, taking drugs and damaging property.  In each case he was able to comment on what was wrong about the example.  In particular he said that it was wrong to fight with someone because “someone might get hurt”.  Ultimately there was this exchange:

“POLICE OFFICER:Yeah, okay … let’s see if I, if I … touched [the other policewoman present] without her permission, is that the right thing or wrong thing?

APPELLANT:Wrong thing.

POLICE OFFICER:Wrong thing, why is that?

APPELLANT:‘Cause people don’t like being touched.”

[13]  The evidence in the defence case was that of a psychiatrist, Dr Stones.  His evidence-in-chief was in the form of a report dated 19 April 2008, written after he had interviewed the appellant in detention in January 2008.  Dr Stones began his report by writing that he would address the appellant’s capacity in two respects:

“one his capacity to understand the nature of his actions and whether these were wrong; and [the other] to understand the charges and to understand the court proceedings.”

He set out the appellant’s medical, family and schooling history.  The appellant had been in and out of several primary schools and had been identified as having a number of behavioural difficulties including attention deficit disorder for which he had been treated with amphetamines.  Dr Stones noted that there was a disparity between the results of different assessments of the appellant, and that in particular a number of tests had shown him to be of average intelligence whereas others had shown him in the bottom five or 10 per cent of the population.  Dr Stones referred to what had been the subject of evidence from the appellant’s father and others that during the period when the events the subject of the offences occurred, the appellant would often masturbate with little regard for the possibility that others in the home would observe him.  He had continued in this behaviour despite being told by his father not to do this except at some place where he could not be observed.

[14]  Dr Stones assessed the appellant’s intelligence by saying that:

“he may be below average but I would not put him very much lower than that just on his general performance in the interview.” 

He assessed the appellant’s insight as:

“probably very limited in terms of his ability to understand the effects his behaviour has on others, in particular his victims.” 

He said that the appellant was:

“unable to understand other peoples’ responses to the things he does even those of a less severe antisocial nature.  He is thus unable to recognise when he is doing or saying something which might annoy others, and the repercussions that this brings on him.”

His diagnosis was as follows:

“In terms of his capacity to understand what he has done is wrong and that it may well have very negative effects on the small children he has exploited, I really do not believe that [the appellant] can understand matters at this level.  He may well be able to learn that certain behaviours are wrong and certain behaviours are right but only in the sense that these are being imposed upon him by authority and not that he has any inner sense of why these behaviours should be right or wrong.  I doubt very much if he can feel any level of remorse for the activities he has been placed in detention for, and I do not believe he in any way can understand the possible ramifications for the children he has assaulted.  For these reasons I believe he is quite likely to become a very dangerous young man.”

[15]  Dr Stones was asked a number of questions by the trial judge.  He was asked about the incident related by the grandfather when the appellant was aged about six, to which Dr Stones said that it was difficult to say whether that supported the case for capacity.  Then his Honour directed the witness to the transcript of the police interview of the appellant, which he had not seen.  The witness commented that in the interview the appellant seemed to exhibit “some knowledge, some ability to distinguish between right and wrong…”  He added that the appellant

“does seem to have some capacity there [in the interview] to distinguish between what is appropriate and what is inappropriate behaviour, stealing and touching and so on”

and that having read the record of interview, he thought that:

“he may be more able to learn new behaviours and to distinguish between appropriate and inappropriate behaviours in the future [but that] it’s going to take a while.”

In re-examination he was asked whether he could glean anything from the way the questions were answered by the appellant, to which Dr Stones said that “I think that he’s giving the answers that he believes the policeman’s expecting.”  He added that he thought the difference between the appellant and

“most kids of his age is the difficulty he has appreciating the hurt and anguish and distress he causes to other people by his behaviour.  I don’t think he really understands that and he doesn’t understand that as being wrong.  He might believe it’s wrong because the policeman tells him so or – or implies that it’s so or his parents told him – or a grandfather told him that something is wrong, but again, it seems it takes him a long time to learn these things and he sometimes doesn’t take any notice, you know, even when he’s told.”

[16]  In R v B,[2] Pincus JA (with whom Davies JA and de Jersey J agreed) said that it was not the law of Queensland that “guilty knowledge must be proved and the evidence to that effect must be clear and beyond all possibility of doubt”, referring to the statement to that effect in the English case of B v R.[3]Pincus JA said:

“What the Code requires could hardly be more clearly stated:  it must be proved that at the relevant time ‘the person had capacity’ (I emphasise capacity) ‘to know that the person ought not to do the act’.  This is, of course, different from proving actual knowledge… Further, there is no indication in the section that any special burden of proof applies to this issue.”

When discussing the facts of the case, Pincus JA described the question as whether the appellant had the capacity to know that what he was doing was “wrong”.  And his Honour approved these remarks of Harper J in R (a child) v Whitty:

“The authorities are clear that the nearer the child in question is to the age of 14, the less strong need the evidence be if the presumption is to be rebutted.  Nothing in this case suggests that the appellant was outside the generality of young persons in this regard.”[4]

[17]  In his written reasons, the learned trial judge correctly identified the question of whether the prosecution had proved that the appellant had the capacity to know that he ought not do the acts charged.  In discussing the evidence and in expressing his conclusion, his Honour did not distinguish between the two charges.  He remarked that it wasn’t clear in which order the offences were allegedly committed.  That comment repeated what was in the prosecutor’s written submission.  As discussed, there was evidence that the event the subject of count two must have occurred after that the subject of count one, and indeed after the appellant had been confronted by his father about count one.  Assuming that to be so, however, if the appellant then lacked the capacity to know that this was wrong, the father’s reprimand was unlikely to matter.

[18]  His Honour summarised the evidence, and in relation to the police interview of the appellant, he observed that:

“At least at the time of the interview, no difficulty was to be observed in the context of whether there was an understanding of right and wrong in a number of concepts.  [The appellant] did indicate to the investigating police officer at that time it would be wrong to touch another person without that person’s consent.”

He then discussed the evidence of Dr Stones and set out the diagnosis in the passage from his report which I have set out above.  His Honour commented that the report did not “strictly address the question of concern to the Court”, adding:

“Whilst material strongly supports [the appellant] did not appreciate the effect of his offending upon his victims, I consider that as a separate issue to whether or not he had the capacity to understand that he ought not to have committed either of the offences.”

He concluded that the evidence from the lay witnesses, the content of the police interview, the circumstances surrounding the commission of the offence and the medical evidence taken as a whole persuaded him beyond reasonable doubt that the appellant had the requisite capacity. 

[19]  In my opinion much of the prosecution evidence was of no relevance to the only question in the trial.  In particular the evidence of what occurred when the appellant was punished by his grandfather, when he was about six years of age, did not have any probative value as to the appellant’s capacity.  If he lacked that capacity when he was 12 years of age, he was hardly likely to have had the capacity to learn what was wrong when he was six years of age.  Recognising that, Mr Copley SC for the respondent emphasised the probative value of the interview with the appellant.  That evidence was of a different kind, because it went to the question of capacity by exploring the appellant’s ability to distinguish between right and wrong.

[20]  For the appellant, Mr Griffith argued that the appellant was simply wanting to agree with the police officer during this interview.  He referred to the evidence of Dr Stones that the appellant appeared to be giving the answers which he believed the police officers were expecting.  Further, the question involving touching another person, it is argued, omitted the ingredient of a sexual element to the assault, so that the answer was of little relevance.  Each of those submissions was made, and properly made, to the learned trial judge.  But his Honour was not bound to disregard this evidence.  It may have been the case that he was looking to please the police officers.  Nevertheless his answers contained some explanation which demonstrated an understanding of right and wrong.  In my view it was open to his Honour to conclude from this evidence that at least by the time of the interview, which was in October 2007, the appellant had the capacity to know that he ought not to do acts of the kind involved in these offences.  A further question was whether it could be inferred, on the basis of what the appellant said in this interview, that he had the same capacity going back as early as May 2007.  In my view that inference was open. 

[21]  The probative value of the police interview was not defeated by the evidence of Dr Stones.  I agree with his Honour that Dr Stones’ report ultimately addressed a different question from that which arose under s 29(2).  And the oral evidence of Dr Stones provided some support for the prosecution case.

[22]  In my conclusion it was open to the learned trial judge to be satisfied of the appellant’s capacity on each charge.  I would dismiss the appeal.

[23]  APPLEGARTH J:  I have had the advantage of reading the reasons for judgment of McMurdo J.  I agree with those reasons and with the order proposed by his Honour.