Police v JVC[2012] QChCM 1

MAGISTRATES COURTS OF QUEENSLAND

[1]  The defendant has pleaded not guilty to a charge that on 1 August 2011, he unlawfully used a motorcycle without the consent of the owner. At the time of the offence, the defendant was 12 years, 1 month and 11 days old, being 12 years 8 months at the date of hearing.

[2]  As a result of discussions between the prosecution and defence before the hearing commenced, the parties agreed that the time, date and place of the offence, as well as the identification and ownership of the motorcycle were not in dispute. It was also conceded by the defence that the defendant’s fingerprint was found on the handlebar of the motorcycle, but it was unknown how old that fingerprint was.

[3]  The only matter in dispute at the hearing was the lawfulness of the alleged act and whether the defendant had the requisite capacity pursuant to s 29(2) of the Criminal Code which provides –

“(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 Law

[4]  I have been referred to a number of cases which discuss the presumption and what is required to rebut that presumption.

[5]  His Honour Alan Wilson SC, DCJ in R v McCormick [2002] QDC 343 considered the leading cases in this area. He quoted with approval the Queensland Court of Appeal which held in R v B^[1], that the prosecution is not required to prove actual knowledge that the act was wrong, only the capacity to know that the person ought not to do the act.

[6]  In referring to Whitty’s case^[2], His Honour found that the acts of which McCormick was accused are of a much lower order than those of the accused in Whitty, and that is a relevant factor in deciding the case. The defendant in Whitty’s case was charged with threatening a teacher with a knife, whilst the defendant in McCormick’s case was charged with offences relating to entering bird aviaries and causing the death and escape of birds. Here the defendant is charged with unlawfully using a motorcycle.

[7]  In McC v Runeckles^[3]it was held that the onus on the prosecution required proof beyond mere knowledge on the child’s part that what he was doing was merely naughty or mischievous. However, in the more recent decision of R v F, ex parte Attorney-General^[4], the Queensland Court of Appeal held that section 29 simply requires the prosecution to prove beyond reasonable doubt that the accused child had the capacity to know that he ought not to do the act which he did, and no more.

[8]  The Queensland Court of Appeal held unanimously that –

Although evidence of the accused’s age alone cannot rebut the presumption made by s 29(2) of the Code, inferences capable of rebutting the presumption can be drawn from the accused’s age when considered together with evidence of the accused’s education or of the surrounding circumstances of the offence, or with observations of the accused’s speech and demeanor.^[5]

The Evidence

[9]  The only witness called by the prosecution was the investigating police officer, Plain Clothes Senior Constable Hogan who introduced photographic evidence of the motorcycle and where it was found as well as tendering into evidence an electronic record of interview with the defendant.

[10] For the purposes of the question to be decided, only the introduction to the interview and that part of the interview relating to this particular offence was admitted as evidence.

[11] It is settled law that the onus is on the prosecution to rebut the presumption contained in section 29(2) beyond a reasonable doubt. During the hearing, the prosecution sought to have a criminal history, purported to be that of the defendant, tendered as part of the prosecution rebuttal case. The criminal history was excluded on the grounds of documentary hearsay, as the prosecution could not tender Certificates of Conviction as primary evidence.

[12] Of course, a previous criminal history which would indicate a defendant’s previous dealings with the criminal justice system and therefore an inference capable of rebutting the presumption that the defendant understood what he did was wrong, is only one of a number of inferences to be taken into account in deciding capacity.

[13] There were admitted into evidence pursuant to s 95 of the Evidence Act, computer generated documents from the Cleveland Education and Training Centre located at the Cleveland Detention Centre. One of these documents is headed “Student Profile Database, Cleveland Education and Training Centre, Attendance, [JVC]”.

[14] This document evidences that the defendant child has “visited” the Centre on 4 different occasions and gives dates on which those “visits” occurred. They are –

AdmittedReleasedDuration

24/03/201125/03/20111 day

03/08/201119/08/201116 days

01/09/201114/09/201113 days

20/09/201119/10/201129 days

[15] Whilst the information contained in the computer generated records only provides details of the defendant’s Personal Learning Plan, initial assessments of literacy and numeracy and details of his attendance at the centre, they do indicate that the defendant was held in this juvenile facility on four separate occasions for what one could call significant periods for one so young in three cases. There is nothing before me to say why he was being held. I do note that at the time of this incarceration, the defendant would have been 11 years and nine months on the first occasion, 12 years and 2 months on the second and 12 years and 3 months on the third and fourth occasions.

[16] The fact that the defendant was held in this facility for periods of time, indicates to me that he has had some considerable interaction with the justice system and cannot be said to be an “innocent” in this regard.

[17] As far as the defence submission that the defendant’s educational difficulties indicated he did not have capacity, I find that this is certainly not shown by the documents admitted into evidence. There is an entry that states the defendant is “easily led by his peers” and that he needs assistance with literacy and numeracy. In my view, these entries do not indicate that the defendant lacks capacity to know that what he did was wrong.

[18] I have viewed the relevant extracts from the electronic record of interview and note that at the outset, Plain Clothes Senior Constable Hogan gave the defendant the usual warning. He then asked the defendant to tell him what he thought it meant. The defendant was able to explain that he knew anything he said could be used as evidence. He also explained that he knew he didn’t have to answer any questions if he didn’t want to. He also explained to the Senior Constable what it meant if he wanted to have a solicitor present, stating that if he did, the police would leave the room, he would speak to the solicitor and then the police would return.

[19] The defendant responded to the explanations in such a fashion to prompt the Senior Constable to comment that the defendant was a “very switched on boy”. The defendant’s aunty was present at the interview as a support person and she acknowledged that she believed the defendant knew what the warnings meant.

[20] The Senior Constable also asked the defendant to read a sentence from the Form 36 which had been provided to his support person. The defendant had no difficulty in reading the sentence coherently. Notably the sentence contained the words “inform you of the identity of a person and where he or she is going to be questioned”.

[21] The defendant was also questioned with regard to his understanding of right and wrong and the responses which he gave in his own words show that he knows the difference between telling lies and telling the truth.

[22] When questioned about the motorcycle, the defendant openly stated that his friends had stolen it.

[23] He said that a few friends came to his home with the motorcycle. They told him that a friend had loaned them the motorcycle, but the defendant told police that he did not believe this as any friend would not give such permission. He was not asked where he thought the motorcycle had come from. It is the riding of the motorcycle as a pillion passenger which forms this charge before the court.

[24] The defendant went on to say that he did not have permission to ride the bike as he did not know who owned it. He described how the others had dumped the bike and came back around to the house.

Conclusion

[25] This case can be distinguished from McCormick’s case on the basis that here there was no psychological report and no direct evidence from an educator other than the records from Cleveland Education and Training Centre. Further, during the police interview, the questions and explanations with regard to warnings and the defendant’s ability to distinguish between right and wrong were not compromised as was the case in McCormick.

[26] I have had the opportunity of observing the defendant, both during the electronic record of interview and as he sat through the proceedings in court. He was engaged and shows an outward maturity for one of his age.

[27] Having applied the relevant tests as set out in R v F, ex parte Attorney General^[6], I am satisfied that the prosecution has rebutted the presumption beyond a reasonable doubt and I find the defendant does have capacity to know what he did was wrong.

[28] Given all of the elements of the charge have been admitted, including the defendant’s admission in the electronic record of interview that he rode the bike, I find the defendant guilty of the charge.