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- Unreported Judgment
Queensland Police Service v DSL QChCM 2
CHILDRENS (MAGISTRATES) COURTS OF QUEENSLAND
Queensland Police Service v DSL  QChCM 2
Queensland Police Service
6 August 2019
31 July 2019
Criminal Law – Serious Animal Cruelty – Whether intention of inflicting severe suffering to the animal – proof of intention
Criminal Law – Criminal liability and capacity – presumption doli incapax – Where child approximately 12 years and four months at time of offending – Whether presumption of doli incapax rebutted – evidence necessary to rebut
Words and phrases – “doli incapax”, “knowledge of the moral wrongness of the act”, “merely naughty or mischievous”, “morally wrong”, “seriously wrong”.
Sgt P Cramp appeared for Queensland Police Service
Ms Z Craven, Solicitor. ATSI Legal Services (QLD) Ltd for the Defendant.
- The defendant child was born on 12 July 2006. At the time of the alleged commission of the two offences on 13 November 2018 he was aged 12 years and four months.
- The charges relate to:
- That on the 13th day of November 2018 at Blackwater … DSL unlawfully killed an animal namely a number of birds with intention of inflicting severe suffering to the animal
- That on the 13th day of November 2018 at Blackwater … DSL without reasonable excuse did discharge a weapon namely a sling shot into a public place namely Rotary Public Blackwater.
- The prosecution has called Tracy Sharp, Det Sgt Michael Froggart and Sgt Robert Smith to give evidence.
- The burden of proof lies with the prosecution to prove each and every element of the offence and the standard of proof is beyond reasonable doubt. It is for the prosecution to satisfy the Court that not only is guilt a rational inference that could be drawn from the proved facts, but it is the only inference.
- Further, the defendant has not given or called evidence. That is his right. He is not bound to give or to call evidence. The defendant is entitled to insist that the prosecution prove the case against him, if it can. The prosecution bears the burden of proving the guilt of the defendant beyond a reasonable doubt, and the fact that the defendant did not give evidence is not evidence against him. It does not constitute an admission of guilt by conduct and it may not be used to fill any gaps in the evidence led by the prosecution. It proves nothing at all, and I must not assume that because he did not give evidence that adds in some way to the case against him. It cannot be considered at all when deciding whether the prosecution has proved its case beyond a reasonable doubt, and most certainly does not make the task confronting the prosecution any easier. It cannot change the fact that the prosecution retains the responsibility to prove guilt of the defendant beyond reasonable doubt.
- In relation to this particular matter I have, during the course of the trial, had an opportunity of listening to and observing the demeanour of the witnesses that have given evidence. This has assisted me in assessing credibility, although I accept that there is a need to keep the appearance and demeanour of a witness in perspective and the weight of that aspect in the light of the other more objective considerations.
Summary of Facts
- The child in the electronic record of interview admits to firing a sling shot in the park and killing a bird and kicking it before it died and shooting at a magpie with a sling shot.
- I find that on the afternoon of 13 November 2018 D, aged 12, and his friend L, aged 11, went to Rotary Park in Blackwater. L had fashioned a sling shot made from a tree branch and a rubber band and used rocks as the projectiles.
- They were observed by Tracy Sharp who videoed what she saw the boys doing which is in evidence as exhibit 1.
- She had been sitting as her computer in her house across the park, heard noises on her roof which were rocks the children were firing from the sling shot and went to investigate and saw the two boys with a sling shot shooting birds in Rotary Park, Blackwater.
- She obtained her camera and videoed what she saw which is part of exhibit 1.
- When she saw L kicking and stomping on a blue faced honey eater they had shot to the ground she went over and told them off. She contacted Blackwater Police and Sgt Smith and Constable Tyson turned up half an hour later.
- Sgt Smith indicates they arrived at Rotary Park about 4:00pm. He saw two dead birds and feathers. He took photographs and spoke with Sharp who gave them a USB with the footage she recorded.
- In the electronic record of interview with Det Sgt Michael Froggart on 15 November 2018 L admits to going to the park with his hand made sling shot with his friend L. The magpie started swooping on them and he was first to use the slingshot to shoot at the magpie then they took turns.
- He shot the magpie.
- L Shot the other bird in the tree. He says the bird was doing nothing. L says he kicked it before it died and he believed the bird was in pain.
- Having viewed the order of the incident he also stomped on it several times.
- As to the serious animal cruelty offence the only element in contention is intention of infliction serious suffering.
- As to the element of intention, the position is explained in Sinnasamy Selvanayagam v R  AC 83 at 87 where the Privy Council observed that “…intention which is a state of mind, can never be proved as a fact: it can only be inferred from facts which are proved”. The same view was expressed in Cutter v The Queen (1997) 71 ALJR 638 per Kirby J at 647. See I (a child) v R (1992) 15 MVR 185; R v Singh (2003) 86 SASR 473; (2003) 230 LSJS 142;  SASC 344.
- In Re Grove (1889) 40 Ch D 216 at 242, Lopes LJ indicated: “[In] order to determine a person’s intention at a given time, you may regard not only conduct and acts before and at the time, but also conduct and acts after the time, assigning to such conduct and acts their relative and proper weight and cogency.”
- The evidence in the video exhibit shows the defendant child moving around trying to stomp and kick the bird on the ground which was still alive.
- In my opinion those acts indicate an intention to cause severe suffering to the animal.
- The elements to each offence have been made out by the prosecution beyond reasonable doubt.
Nature of the Submission
- The defence submit that the prosecution has not proven beyond reasonable doubt the defendant child had the capacity to commit the two offences charged. Section 29 of the Criminal Code provides:
“29 Immature age
- (1)A person under the age of 10 years is not criminally responsible for any act or omission.
- (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 the person ought not to do the act or make the omission.”
- The presumption is referred to in common law as doli incapax. The words “doli incapax” mean “incapable of crime” (R v ALH (2003) 6 VR 276, ).
- For persons aged 10 to 14 years, s 29(2) establishes a rebuttable presumption against criminal responsibility. The onus of rebutting this presumption falls upon the prosecution, which must prove the defendant had the capacity to know that he ought not do the act or make the omission. To satisfy this burden the prosecution must prove through the evidence that the accused possessed capacity to that level. WB Campbell J (as he then was) said in R-V-B (an infant)  Qd R 417 at 425:
“It seems to me that this proof, this rebuttal of the presumption, may be done only by the calling of proper and admissible evidence.”
- The rationale for the presumption of doli incapax is that a child under 14 years of age is “not sufficiently intellectually and morally developed to appreciate the difference between right and wrong”. Therefore, a child aged under 14 lacks the capacity for mens rea (RP v The Queen  HCA 63, ).
- In C (a minor) v DPP, Lord Lowry said at 181-2, “The fact that the presumption was rebuttable has led the courts to recognise that the older the child (see B v R (1958) 44 Crim App R 1 at 3) and the more obviously heinous the offence, the easier it is to rebut the presumption. Proof of mental normality has in practice (understandably but perhaps not always logically) been largely accepted as proof that the child can distinguish right from wrong and form a criminal intent. The presumption itself is not, and never has been, completely logical; it provides a benevolent safeguard which evidence can remove. Very little evidence is needed but it must be adduced as part of the prosecution’s case, or else there will be no case to answer”. He continued at 187, “The second clearly established position is that evidence to prove the defendant’s guilty knowledge, as defined above, must not be the mere proof of doing the act charged, however horrifying or obviously wrong that act may be.” He concluded that the presumption can only be rebutted by clear positive evidence that the child knew the act was seriously wrong, such evidence not consisting merely in the evidence of the acts amounting to the offence.
- There was some criticism of the case that the term ‘seriously wrong’ is conceptually obscure.  EWHC 2993;  1 Cr App R 188. On appeal to the House of Lords, Lord Lowry concluded, however, that its meaning is relatively clear when contrasted with mere naughtiness or mischievousness. This distinction was also adopted in a number of Australian decisions that required proof that the child ‘knew it was seriously wrong, as distinct from an act of mere naughtiness or mischief’. BP v The Queen  NSWCCA 172 (1 June 2006) . See also RP v The Queen  HCA 53; (2016) 259 CLR 641; R v JA  ACTSC 51; (2007) 161 ACTR 1; R v ALH  VSCA 129; (2003) 6 VR 276; R v M (1977) 16 SASR 589. The High Court in RP v The Queen confirmed the approach, noting that aside from establishing that the child knew that the offence was seriously wrong in a moral sense, there was ‘the further dimension of proof of knowledge of serious wrongness as distinct from mere naughtiness’.  HCA 53; (2016) 259 CLR 641, 650 .
- In RP v R (2016) 340 ALR 212; 91ALJR 248;  HCA 53, the High Court quashed convictions of an 11 year old convicted of rape on the basis that the prosecution had not rebutted the presumption of doli incapax in a situation where the prosecution relied principally on the surrounding circumstances of the offences. Keifel, Bell, Keane and Gordon JJ said:
“ … From the age of 10 years until attaining the age of 14 years, the presumption may be rebutted by evidence that the child knew that it was morally wrong to engage in the conduct that constitutes the physical element or elements of that offence. Knowledge of the moral wrongness of an act or omission is to be distinguished from the child’s awareness that his or her conduct is merely naughty or mischievous [C (a minor) v DPP  AC 1 at 38; BP v R  NSWCCA 172 at -].This distinction may be captured by stating the requirement in terms of proof that the child knew the conduct was ‘seriously wrong’ or ‘gravely wrong’ [R v Gorrie (1918) 83 JP 136; C (a minor) v DPP  AC 1 at 38; Archbold: Criminal Pleading, Evidence & Practice, (1993), Vol 1 at 52 [1-96]]. No matter how obviously wrong the act or acts constituting the offence may be, the presumption cannot be rebutted merely as an inference from the doing of that act or those acts [R v Smith (Sidney) (1845) 1 Cox CC 260 per Erle J; C (a minor) v DPP  AC 1 at 38; BP v R  NSWCCA 172 at ; R v T  AC 1310 at 1331  per Lord Phillips of Worth Matravers]. To the extent that the decision of the Court of Appeal of the Supreme Court of Victoria in R v ALH (2003) 6 VR 276 at 298 at ; see also at 280-281 , 281  suggests a contrary approach, it is wrong. The prosecution must point to evidence from which an inference can be drawn beyond reasonable doubt that the child’s development is such that he or she knew that it was morally wrong to engage in the conduct. This directs attention to the child’s education and the environment in which the child has been raised [B v R (1958) 44 Crim App R 1 at 3-4 per Lord Parker CJ; C (a minor) v DPP  AC 1 at 8 citing F v Padwick  Crim L R 439 per Lord Parker CJ].
 What suffices to rebut the presumption that a child defendant is doli incapax will vary according to the nature of the allegation and the child. A child will more readily understand the seriousness of an act if it concerns values of which he or she has direct personal experience. For example, a child is likely better able to understanding control of his or her own possessions and the theft of others’ property compared to offence such as damaging public property, fare evading, receiving stolen goods, fraud or forgery. Answers given in the course of a police interview may serve to prove the child possessed the requisite knowledge. In other cases, evidence of the child’s progress at school and of the child’s home life will be required. It has been said that the closer the child defendant is to the age of 10 the stronger must be the evidence to rebut the presumption. Conversely, the nearer the child is to the age of 14, the less strong need the evidence be to rebut the presumption. The difficulty with these statements is that they are apt to suggest that children mature at a uniform rate. The only presumption which the law makes in the case of child defendants is that those aged under 14 are doli incapax. Rebutting that presumption directs attention to the intellectual and moral development of the particular child. Some 10-year-old children will possess he capacity to understand the serious wrongness of their acts while other children aged vert nearly 14years old will not [footnotes omitted].”
- The test can be summarised as follows:
- The onus is on the prosecution to rebut the presumption of doli incapax as part of the prosecution case;
- Proof of capacity requires proof the child appreciated the moral wrongness of the act or omission and is to be distinguished from the child’s awareness that his or her conduct was merely naughty or mischievous;
- The evidence relied upon by the prosecution must be strong and clear beyond reasonable doubt or contradiction; and
- The evidence to prove the accused’s guilty knowledge, as defined above, must not be the mere proof of doing the act charged, however horrifying or obviously wrong the act may be.
- Rebutting the presumption of doli incapax in each case will depend on the intellectual and moral development of the subject child, as children do not mature uniformly. For example, while some 10 year old children will understand the serious wrongness of their actions, other 13 year old children will not have that capacity (RP v The Queen  HCA 53, ).
How do you rebut the Presumption?
- This case has similarities with R v McCormick  QDC 343 where a child aged 10 years and 11 months was charged with offences. The facts were Mr Salisbury, a bird breeder, travelled to Melbourne on 19 April 2001 and left his friend, Mr Girvan, to take care of his birds. Girvan on 20 April 2001 went to the aviary and returned the following morning and discovered several internal doors were open and one of the external doors. A number of birds were seen perched outside and it appeared a number had escaped. A child’s jacket belonging to the defendant was located. Further inspection found five finches had been jammed tightly between a wall and automatic seed feeder which resulted in the deaths of four of them. Five other dead finches were located in two separate areas. A Turquisine Parrot was found dead in a water bowl in a cage it had not been housed in. Another parrot was found badly injured. Fifteen bird carcasses were found in various cages. Mr Brown was contacted and went and helped Mr Girvan inspect the aviaries and birds. Mr Brown noticed three boys on the property, one was the defendant. He questioned the boy who responded by making admissions in relation to his involvement. The question before the Court was whether the child had capacity to commit the offences for which he was charged.
- Alan Wilson SC, DCJ (as he then was) said at :
“In R v B (CA(Qld), CA No 369 of 1997, 6 November 1997, unreported, BC9707526), the court held that the Crown is not required prove actual knowledge that the act was wrong, only the capacity to know that the person ought not to do the act. An expectation that a child of a certain age would have the capacity to know something was wrong does not affect the existence of the presumption, but it may affect the strength of the evidence necessary to rebut it. The closer a child is to 14 years of age, the less strong the evidence must be to rebut the presumption. Here, the age of the accused child at the time of the alleged commission of the offences was at the younger end of the range contained in s 29(2), so the evidence must be at the stronger end of the spectrum.”
- When interviewed by Police it was suggested McCormick had been inside an aviary and, amongst other things, left a door open leading to some birds escaping and dying. The officer began the questioning by asking: ‘Did you know that it’s – it was seriously wrong to go into those aviaries?’ Judge Wilson felt that the child’s answers could not assist in determining whether he had the requisite capacity at the time of the offence because the proposition that his behaviour was wrong had already been put to him. Therefore, Wilson DCJ did not feel ‘confident that the child, having been alerted to what the policeman considers to be wrong, did not merely provide the answer that he believed would appease the officer’.
- The prosecution also sought to rebut the presumption on the basis of a false denial when the boy answered ‘no’ to the question of ‘[d]o you realised you killed a lot of small birds?’ His Honour rejected that this denial established sufficient understanding because the question related to whether the young person realised the existence of the state of things. There was evidence that he had been at the aviary with other boys, but there was no evidence that he had actually killed the birds. Furthermore, the fact that the boy made no reply to a similar question and looked shocked was taken by Wilson DCJ as signalling nothing more than that the boy was visibly affected by the realisation that his actions could have led to the death of the birds.
- The following is extracted from Crofts, Thomas --- “Prosecuting Child Offenders: Factors Relevant to Rebutting the Presumption of Doli Incapax”  SydLawRw 13, (2018) 40(3) Sydney Law Review 339.
- As the authorities state the evidence establishing the offence itself cannot along be used to rebut the presumption. However, evidence of circumstances surrounding the offence can be used. R v Fe, ex parte A-G (Qld)  QCA 97; (1999) 2 Qd R 157; C A Minor v DPP  UKHL 15;  AC 1, 39.
- The sort of evidence of surrounding circumstances which has been used to support a finding that the child understood that what he or she had done was seriously wrong includes: evidence of careful planning of the crime, particularly sophisticated or devious methods of carrying out the act; assertion of a false alibi; making efforts to conceal the act or divert blame; and running away from police. R v F, ex parte A-G (Qld)  QCA 97; (1999) 2 Qd R 157; RH v DPP (NSW)  NSWSC 520 (10 May 2013) .
- As Gageler J pointed out in RP v The Queen (2016) 259 CLR 641, 660 , inferences drawn from the circumstances surrounding the act alone need to be placed in the context of other evidence about the child’s mental capacity. http://classic.austlii.edu.au/au/journals/SydLawRw/2018/13.html - fn114 Given the difficulty in separating evidence that establishes the commission of the offence from evidence of circumstances surrounding the offence, and the importance of context, the best approach is to adduce further forms of evidence which can confirm any conclusions drawn from such evidence.
- In R v LAH  QCA 82, the prosecution relied on the argument that ‘[i]t was inevitable ... that the jury would have concluded that, in 1999, the 13 year old appellant who appeared of normal intelligence and attended school, would have the capacity to know he should not behave in this way’. While the Queensland Court of Criminal Appeal found some appeal in this approach, it concluded that this is not in line with the clear wording of s 29(2) of the Criminal Code of Queensland. http://classic.austlii.edu.au/au/journals/SydLawRw/2018/13.html - fn116 As stated in R v B  QCA 486:
“One would expect a child as old as 12 to have the capacity to know that threatening a teacher with a knife is wrong, but this expectation does not affect the existence of the presumption; it only affects the strength of the evidence likely to be necessary to rebut it.”
- It is possible, but not necessary, to call an expert witness to give evidence on the child’s developmental state. This may take the form of a report by a psychologist or psychiatrist.
- Home and school background profoundly affect a child’s ability to understand the wrongfulness of behaviour. In these environments, the child first learns the difference between acceptable and unacceptable behaviour. If there are failings, particularly in the home, ‘what is more likely than that a child is brought up without knowledge of right and wrong?’ F v Padwick  Crim LR 439 (Parker CJ).
- Use of past criminal convictions have been held admissible to establish capacity on the basis of the evidence of a previous finding of guilt is admitted for the purpose of establishing whether a child knew the act was wrong. The usefulness of the record is dependent on whether the past criminal act is similar to the one in consideration. Instance a conviction for assault does not mean a child understand the wrongfulness of an act of forgery.
- Evidence of statements of the child are highly probative. There have been several cases where an admission by the child to the police that he or she knew that the act was wrong has been used to rebut the presumption. In JM (A Minor) v Runeckles (1984) 79 Cr App R 255, a 13-year-old girl attacked another girl and stabbed her with a broken milk bottle. Evidence of her understanding was taken from the fact that she clearly and coherently described what had happened when she gave a statement under caution to the police shortly after her arrest. However, the use of statements made by a child must be approached with caution. In IPH v Chief Constable of South Wales  Crim LR 42, a boy accused of criminal damage admitted that he foresaw that pushing a van against a post would result in damage. Lord Justice Woolf regarded this statement as showing that the boy knew the consequences of his act but not that he knew that his act was seriously wrong.
- To rebut the presumption of innocence in subs (2), the prosecution can call any relevant evidence.
- The only admissible evidence to rebut the presumption is in the electronic record of interview on 15 November 2018 with the defendant child, his sister and Det. Sgt. Michael Froggart.
- The relevant part of questioning relating to the serious animal cruelty charge takes place approximately 10 minutes and 20 seconds into the interview with the following exchange:
“Det. Sgt Froggart: Did you know that it’s wrong to shoot birds?
Det, Sgt. Froggart: Why do you know it is wrong?
L: Because it’s part of nature.
Det. Sgt. Froggart: Magpies are protected so you can’t shoot them?
L: Are they? (Sounds surprised)”
- I am satisfied beyond reasonable doubt that the child's development is such that he knew that it was morally wrong to engage in serious cruelty to the animal when he says in the record of interview it is wrong to kill birds “because it’s part of nature”.
- The question relating to the magpie being protected relates to a charge that was dismissed.
- No questions were asked if the child knew that the firing of a slingshot in a public place was seriously wrong.
- Consequently, there is no evidence that that the child knew his conduct was seriously wrong from an act of mere naughtiness or mischief. Finding a child knew it was seriously wrong to commit an act of animal cruelty does not mean a child understands the wrongfulness of an act of firing a slingshot in a public place.
- I find the defendant child guilty of the serious animal cruelty charge and not guilty of the weapons charge.
 Shepherd (1990) 170 CLR 573 at 578.
- Published Case Name:
Queensland Police Service v DSL
- Shortened Case Name:
Queensland Police Service v DSL
 QChCM 2
06 Aug 2019