R v TT[2009] QCA 199

SUPREME COURT OF QUEENSLAND

1. KEANE JA:  On 18 February 2009 the appellant was convicted after a trial in the Childrens Court of Queensland constituted by a District Court judge of two counts of serious assault.  He was subsequently sentenced to six months probation and no conviction was recorded.

2. The appellant now seeks to appeal against his convictions on a number of grounds. One of those grounds is that the conviction was "unsafe and unsatisfactory". As this ground must be taken to involve the proposition that no reasonable tribunal of fact could have been satisfied on all the evidence of the appellant's guilt beyond reasonable doubt,^[1] it is convenient to summarise the evidence adduced at trial and the reasons of the learned trial judge before discussing the grounds of appeal in more detail.

The case at trial

3. The case against the appellant was that, in contravention of s 340(1)(h) of the Criminal Code 1899 (Qld) ("the Code"), on 26 November 2007 at a shopping centre in Brisbane's western suburbs he assaulted a person who was reliant upon a wheelchair.  At the time of the alleged assault the appellant was 12 years and 10 months of age.

4. The complainant gave evidence that he was punched in the face by the appellant on two occasions separated by some minutes. The appellant did not give evidence, but the case put on his behalf in cross-examination of the complainant was that there was only one assault on which occasion the appellant punched the complainant twice, not once as alleged by the complainant.

5. The complainant's evidence was that on the day in question the appellant, who was previously unknown to him, punched him in the jaw. Then the appellant and another person who had been standing nearby ran off laughing. The complainant said that he followed them in his wheelchair because he wanted to know why the appellant had punched him. He caught up with them and used the camera function on his mobile telephone to take a photograph of the appellant. The appellant then said: "Oh shit", and ran away.

6. According to the complainant, about half an hour later, he located the appellant near the medical centre in the shopping centre. The complainant stood up in his wheelchair, but sat down when the appellant came towards him. The appellant then punched the complainant on the right side of the forehead. The complainant heard someone call out from the car park near the medical centre: "Hey, that's not right" and the appellant ran off. The complainant did not see him again that day.

7. There was evidence, which was not contested, that the complainant suffered from a brain injury.

8. Mrs Geitenbeek gave evidence that she was seated in her vehicle in the car park of the medical centre when she noticed that a number of children had encircled the complainant. She saw the complainant appear to take a photograph and then make his way in his wheelchair past the group of children and turn towards three boys who were standing under a tree nearby. When he was about six or seven metres from them he raised his telephone again and one of the boys ran over to him and hit him in the side of the face. She said that the boy threw a second punch which she thought connected with the side of the complainant's face. Mrs Geitenbeek got out of her vehicle and screamed at the boy to leave the complainant alone. She saw that the complainant's mouth was bleeding and that he had a graze on his forehead. She told the appellant that he had no right to do what he had done and that his behaviour was unacceptable. She asked the appellant his name, and he refused to provide it. His only response to her remonstrations was to say to her: "What the fuck was I supposed to do?"

9. The police arrived shortly thereafter, and she pointed the appellant out to the police. The appellant ran off and the police gave chase. Shortly afterwards the appellant was apprehended by the police.

10. The principal issue agitated at trial concerned s 29 of the Code. Pursuant to s 29(2) of the Code:

"[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."

11. As part of the case mounted to discharge the burden of proof cast upon the prosecution by this provision, evidence was led from Senior Constable Linton of his dealings with the appellant on 8 May 2007. On that date Senior Constable Linton had interviewed the appellant, in the presence of his father, concerning a complaint that the appellant had committed offences of going armed in public so as to cause fear and affray on 2 May 2007. The appellant's father brought the appellant to the police station to be interviewed pursuant to an arrangement previously made between himself and Senior Constable Linton.

12. Senior Constable Linton provided the appellant's father with a document which described the role of a "support person" in an interview of a child by police. He also informed the appellant, in his father's presence, of his right to seek legal advice before proceeding with the interview. The appellant was also informed of his right not to answer questions, and that what he said might be used as evidence against him. The appellant then told Senior Constable Linton that he was in grade 7 at school and that he knew the difference between telling the truth and telling a lie. The appellant agreed with Senior Constable Linton's suggestion that he knew that it would be wrong to menace a person with a piece of wood. At the end of the interview, the appellant was given a "notice of caution" which recorded that he had been informed that he had broken the law. The appellant signed this document. It was tendered without objection. There was an objection taken on the appellant's behalf to the admission of the record of interview, but this objection was over-ruled by the learned trial judge.

The decision of the learned trial judge

13. The learned trial judge accepted the evidence of the complainant that he was assaulted on two occasions, even though his Honour said: "I do have some concerns about his evidence because the attacks upon him seem inexplicable and I find that difficult to accept." His Honour was persuaded to accept the complainant's account, notwithstanding Mrs Geitenbeek's account of two blows on one occasion, because it was "logical that the complainant was endeavouring to take the photographs of the two boys under the tree because of some earlier incident, because they apparently played no role in the incident in the car park that Mrs Geitenbeek … observed."  His Honour concluded in relation to the assaults on the complainant:

"I am thus satisfied beyond a reasonable doubt of all the physical evidence in relation to the offence, however there is an additional element that is required to be proved beyond a reasonable doubt, and that is that the Crown must prove beyond reasonable doubt that the accused child had the capacity to know that he ought not do the act, in other words that it was seriously wrong."

14. The learned trial judge then proceeded to resolve the issue as to the appellant's capacity in the following terms:

"The accused was born on the 23rd of January 1995. These offences occurred on the 26th of November 2007. He was some 12 years and 10 months old at the time. In my view, the circumstances of the offence are of relevance in the consideration of whether the child had the capacity. I accept the complainant's evidence that, after the first assault he produced his camera and that the accused said "Oh shit" and ran off. To my mind, that indicates a knowledge that what he had done was wrong. Mrs Geitenbeek's evidence was, after remonstrating with the child for some time, she told him that she was going to call the police and that he should stay where he was. He walked off. Again that gives some indication.

The police officer's evidence is that, after he was pointed out at a bus stop by Mrs Geitenbeek and they started to walk towards him, he ran from them. He was later detained. All of those to my mind give some indication as to his capacity to know that what he had previously done was wrong. It is not particularly determinative however and in some ways it is equivocal because by then he must have realised that he was in trouble by Mrs Geitenbeek's intervention. However, what is important is the fact that he has had prior contact with the police. In May of that same year, he was questioned about an incident involving the carrying of a weapon, a wooden baton, and an offence of affray. That apparently related to a confrontation between groups of youths when the child picked up a baton and was carrying it in public.

He was interviewed by the police on the 8th of May of 2007 about that. During that interview he was asked a number of questions particularly concerning his capacity to know that he ought not have done that act. To my mind, although some of his answers were monosyballic, he did volunteer information on occasions, he answered appropriately and responsibly. The transcript as produced here contains a number of passages recorded as indistinct, however answers can be heard on the videotape. On my view, it displays intelligence on behalf of the child consistent with his age and his answers to questions indicate a capacity to know right from wrong. He was directly asked questions about his capacity to know that and his knowledge of right from young. He agreed with suggestions that his parents, teachers and his church had all told him the difference between right and wrong. He demonstrated his knowledge of a lie and the truth, and it is important to recognise that this interview with police officers took place in a formal situation with his father present, and it was clearly emphasised to him the serious nature of the matter. It's also relevant to recognise that that was in relation to street-type matters of threatening people with a weapon and affray. To my mind, the importance of that is that he came to the attention of the police at an earlier stage and was in fact warned by them, if not the situation he found himself in, of the serious nature of these sorts of matters.

In that regard, at the end of the interview he was issued a formal caution in relation to those two offences. That entailed on the police officer's evidence him taking him through the caution form which explains the nature of the offences and the possibility of punishment as a result, and the child indicated his understanding.

On the consideration of all those matters, I am of the view that the child clearly had the capacity to know that he ought not to have done the act at the time. I am satisfied beyond a reasonable doubt that the Crown has established its case against the accused and I convict him of each offence."

The grounds of appeal

The record of interview and notice of caution were inadmissible

15. The first ground of appeal is that the learned trial judge erred in failing to exclude the record of interview of 8 May 2007 and the notice of caution. In support of this ground it is argued that this evidence was irrelevant, and therefore inadmissible, because it concerned misconduct other than the subject of the counts before the learned trial judge which was not apt to show that the appellant had the capacity to know that he ought not to do the acts the subject of those counts.

16. The evidence of the interview and the notice of caution was not tendered to prove that the appellant had committed any offence other than the alleged offences of 26 November 2007.  Its relevance was only to prove that the appellant's acknowledgment that he knew that it was wrong to threaten violence to other people to show that he had the "capacity" to know that he ought not assault other persons. 

17. In my respectful opinion, the appellant's admissions did afford a rational basis for the conclusion that the appellant had the capacity to know that he ought not engage in violent conduct against other persons. If he had this capacity in May 2007 to know that he should not engage in violent conduct towards other people, it is rational to infer that he continued to have this capacity in November 2007. There was no reason to think that he might have lost that capacity between May and November 2007. The evidence was, therefore, relevant to the issue under s 29(2) of the Code.

18. There was no unfairness in the use of this evidence which would have warranted its exclusion. The interview of 8 May 2007 was conducted in the presence of the appellant's father as a support person. The evidence of Senior Constable Linton in this regard was uncontradicted. There is no support in the evidence for the appellant's assertion that his father was not an effective support person. That assertion is not established simply because English was not his father's first language.

Insufficiency of the evidence of capacity

19. The second ground of appeal was that there was insufficient evidence for the learned trial judge to be satisfied beyond reasonable doubt that the appellant knew that the offences with which he was charged were "seriously wrong". This ground of appeal is quite misconceived. What the learned trial judge had to decide was whether he was satisfied beyond reasonable doubt that the appellant had the capacity to know that it was wrong to assault another person.

20. Apart from the record of interview and the signed caution, there was the evidence of the complainant, Mrs Geitenbeek and the police as to the appellant's behaviour when confronted. Even if that behaviour is regarded as equivocal (as his Honour regarded it) as evidence of an ability on the part of the appellant to appreciate that what he did to the complainant was wrong,^[2] it must be borne in mind that there was no evidence to suggest that the appellant suffered from any disability which would in fact deny him the capacity to know that his assault was wrong.  In this respect, the present case is readily distinguishable from R v McCormick^[3] on which the appellant relies.  In that case, there was expert evidence of the defendant's inability to distinguish between right and wrong.  To say this is not to reverse the burden of proof cast upon the prosecution by s 29(2) of the Code; rather, it is to make the point that there was no evidence to counter the evidence of capacity which the prosecution adduced.  It is not difficult to infer as a fact from the circumstances of the case that the appellant had the necessary capacity.  It was open to the tribunal of fact to reason that the most basic level of understanding would suffice to enable a child of 12 years to understand that it is wrong to punch a wheelchair-bound person without provocation.

Insufficiency of the evidence of two assaults

21. In respect of this ground of appeal, the appellant seizes upon the observation by the learned trial judge that he had difficulty accepting that the appellant would have attacked the complainant for no reason at all.

22. But it is clear that the learned trial judge was distinctly not in any doubt about the reliability of the complainant's evidence supported as it was by the evidence of Mrs Geitenbeek which his Honour described as powerful.  In any event, the concern felt by his Honour as to the absence of an apparent reason for the appellant's assault on the complainant could not have had any rational bearing on the resolution of the question whether there were two assaults or only one.

Conclusion and order

23. The grounds of appeal cannot be sustained.

24. The appeal should be dismissed.

25. CHESTERMAN JA:  I agree with Keane JA.

26. WILSON J:  The appeal should be dismissed for the reasons given by Keane JA.