The Queen v McCormick[2002] QDC 343

DISTRICT COURT OF QUEENSLAND

REASONS FOR JUDGMENT - ALAN WILSON SC DCJ

12. [1]
    The accused is a child who was born on 12 May 1990. At the time of the alleged commission of Counts 1 and 2 he was aged 10 years 11 months, and 11 years 1 month respectively.

Summary of Facts

Count 1

12. [2]
    The offence is alleged to have been committed between 19 and 22 April 2001. The complainant, Peter Salisbury, is a bird breeder who conducts his business from home. At the time of the alleged offence he owned about three hundred birds. On 19 April 2001, he travelled to Melbourne and left his birds in the care of Geoffrey Girvan, a friend and bird breeder. The birds were housed in eighteen aviaries, according to compatible species.
13. [3]
    On 20 April 2001, Mr. Girvan went to the aviary and confirmed that the birds were satisfactorily housed. He returned the following morning and discovered that several internal doors were open and one of the exit doors was ajar. As a result, a number of birds were in walkways, perched outside their original enclosure. Further, it appeared a number of birds had escaped. Mr. Girvan located a child's jacket in the aviary, which was later identified as belonging to the accused. Small footprints were also visible on the floor of the cages.
14. [4]
    Further inspection of the aviary revealed that a number of finch nests had been pulled apart. Five finches had been jammed tightly between a wall and an automatic seed feeder, which resulted in the death 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 in which it had not been housed prior to its death. A bird catching net was found next to this bird. Another parrot, which was badly injured, was also located. Mr. Girvan saw fifteen bird carcasses, located in various cages.
15. [5]
    As a result of a telephone call from Mr. Girvan's wife on 21 April 2001, Mr Gary Brown went to the complainant's house. He helped Mr Girvan inspect the aviaries and birds. While he was reporting the damage to police, Mr. Brown noticed three boys on the Salisbury property, one of whom was the accused. He questioned the boy, who responded by making admissions in relation to his involvement in the matter. The complainant estimated that about 70 birds, valued at $2,270.00, either died or escaped.

Count 2

12. [6]
    The complainant on this count, Steven Alexander Gordon, is another bird breeder. On 16 June 2001, he inspected his aviaries and found four finches dead on the floor. It was also apparent that two nest boxes had been moved, and a number of finch chicks, an emerald dove, and a bleeding heart pigeon were missing. Tail feathers likely to be from the missing dove were found on the floor of the aviary.
13. [7]
    Mr Gordon immediately went to the home of the accused to confront him about the missing birds. In response to questioning by both the complainant and the mother of the accused, the child admitted he had been in the aviaries and that he took the emerald dove, which later flew away from its perch in the yard of the accused.

Nature of the Application

12. [8]
    Although counsel could not agree which party ought to bring this application, it concerned the question whether or not the accused child had the capacity to commit the offences with which he is charged. S 29 of the Criminal Code deals specifically with the matter, and provides:

S 29: Immature age

1. 1.A person under the age of 10 years is not criminally responsible for any act or omission.
2. 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

12. [9]
    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 accused 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):

It seems to me that this proof, this rebuttal of the presumption, may be done only by the calling of proper and admissible evidence.^[1]

The Age of the Child

12. [10]
    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.

The Nature of the Offence

12. [11]
    In Whitty (1993) 66 A Crim R 462, Harper J dealt with a similar presumption in Victoria, also relating to children aged 10 to 14 years. The learned judge found in favour of the Crown, emphasising that the child was not possessed of such an unusually immature moral sense as to be incapable of understanding that it was wrong to, as occurred there, threaten a teacher with a knife. Here the offence is of a different order, involving mischief which has become vandalism, albeit involving harm to fauna.
13. [12]
    The evidence suggests the child, and perhaps others, broke into the aviaries, but there is nothing to indicate he intended to deliberately inflict harm upon the birds. It is conceivable some birds died during the course of attempts by him to catch and count them. Indeed a psychologist, Mr Hatzipetrou, (whose evidence is discussed later) described the actions of the accused as a product of his significant fascination, even obsession with birds. Evidence that the child expressed shock and sadness upon being told of the death of the birds (also mentioned later) reinforces the notion that he did not intend to harm. These acts are of a much lower order than those of the accused in Whitty, and that is a relevant factor in deciding the issue.

The Test for Capacity

12. [13]
    In McC v Runeckles^[2] it was said the onus on the Crown required proof beyond mere knowledge, on the child's part, that what he was doing was merely naughty or mischievous. This ratio had been expressed many years earlier by Lord Parker LCJ in B v R^[3] However, in a recent decision the Queensland Court of Appeal^[4] held that s 29 simply requires the Crown 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.

A False Denial?

12. [14]
    In relation to Mr. Brown's questioning of the accused at the Salisbury property the prosecution asserts (in written submissions):

He questioned the accused as to whether or not he was looking for his jacket to which the accused indicated that he was. Initially the accused denied having left the jacket but admitted to having had the jacket the previous day. When questioned as to how the jacket came to be inside the aviary the accused indicated that a door was open and claimed to have done nothing once inside. When asked whether he realised that he had killed a lot of small birds and that he had allowed a number of birds to escape, the accused indicated no.

12. [15]
    Mr Brown's statement of 2 January 2002, recites a conversation between the him, and the child, in these terms:

Michael McCormick made no reply but looked shocked.

12. [16]
    The presumption of doli incapax may be rebutted in instances in which an accused makes false denials, which assert a false alibi.^[5] Here, the accused has not denied a specific accusation that he killed the birds; rather, his negative response was in reply to the accusation, ‘Do you realise that you killed a lot of small birds?’ The prosecution sought to rely on his answer as evincing mens rea, rebutting the presumption; but I do not think the nature of the question allows that conclusion. The question actually asked of the child can only fairly be construed as inquiring whether the he realised the existence of a state of things. The fact he failed to answer in the affirmative cannot conclusively rebut the presumption. The evidence suggests he had been at the location of the alleged offence with other boys. There is no evidence extinguishing the possibility the other boys may have been responsible for the death of the birds. Likewise, there is no direct evidence that he killed the birds. Hypothetically, had the accused denied an allegation that was framed, ‘Did you kill the birds?’, such a denial, if coupled with evidence that he had in fact killed the birds, could persuade the court that the presumption of doli incapax had been rebutted. That is not the case here.
13. [17]
    The conversation between Mr. Brown and the child does no more, then, than establish the latter had been at the location at which the offence was alleged to have been committed. Mr Brown's observations also indicate that the accused was in the company of other boys. On these bases the denial upon which the prosecution seeks to rely cannot conclusively rebut the presumption of doli incapax. Further, even if it was proven that the birds died as a result of the actions of the accused, the denial of the accusation, as it was phrased, does not rebut the presumption.
14. [18]
    Finally, and for the sake of completeness, the assertion that the child ‘made no reply but looked shocked,’ indicates nothing more than that he was visibly affected by the suggestion, or perhaps realisation, that his actions may have led to the death of the birds that had escaped. This reaction cannot, however, by itself rebut the presumption.

The police record of interview

12. [19]
    The Crown sought to lead evidence from a police officer, Mark Williams, of an official caution, pursuant to the Juvenile Justice Act (Qld) 1992, which was administered during the intervening period between the commission of counts one and two. Objection was taken by the accused on a number of grounds, but in my opinion the matter is resolved by section 18M(1) of the Act, which provides that, “Evidence that a caution has been administered to a child is not admissible against a child in a proceeding taken against a child for an offence.” There was debate as to whether or not the phrase in ss (1), “a proceeding taken against a child for an offence” extends to an application of the kind before the court on 22 August 2002, and in my view it clearly does. The outcome of the application involved a ruling which ordinarily would be binding upon the trial judge in respect of an issue which would otherwise go to the jury at the trial. S 18M(2) does provide exception and debate focused upon subsection 2(c), which would permit evidence of a caution to be admitted in a proceeding in which it is admissible in evidence under the Act. Notwithstanding the decision in R v F, ex parte Attorney-General [1999] 2 Qd R 157, concerning conduct closely associated with the act, including the commission of another offence, nothing in s 29 contains a clear exception to s 18M(1) or indicates that the evidence it prohibits is admissible within the special circumstances of the issues to which s 29 gives rise. On these bases the objection of the accused that the evidence of Constable Williams be excluded was upheld.
13. [20]
    Nevertheless, for the sake of completeness, it may be useful to traverse the proposed evidence of Constable Williams. For present purposes the following extract of the record of interview is relevant:

12. [21]
    The difficulty this passage creates arises from the fact the officer has attempted to determine the capacity of the accused to discern right from wrong, after having already put the proposition to him, that it was ‘seriously wrong to go into those aviaries.’ I cannot be 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. This does not assist in determining whether or not the child had the requisite capacity at the time in question. In any event, once the proposition had been raised and then subsequently repeated, the child replied, ‘no.’
13. [22]
    The record of interview continued:

12. [23]
    This part of the interview does no more to rebut the presumption of doli incapax. It merely demonstrates that the child, at the time of the interview, possessed an unrealistic appreciation of the consequences which might flow from trespassing; and, that his mother had spoken to him - but it is left unclear when this took place, and it is impossible to discern whether she did so before, or subsequent to, the offences.

The Period between the Offences

12. [24]
    The second offence is alleged to have been committed on a date unknown between 14 and 17 June 2001, i.e. twenty nine days after the child participated in the police interview with Constable Williams. When that interview is excluded, there is no evidence of any police involvement in the interim period between the dates of counts one and two. Further, there is no other evidence before the court that the accused had been castigated or warned by an adult in that time, other than the conversation he had with Mr. Brown in respect of count one. In the absence of evidence of that kind it is impossible to conclude that the child, if he lacked capacity at the time of the first count, gained it during the intervening period between counts one and two as the result of any external influence that may have triggered his moral conscience.

The Capacity of this Child

The child's education

12. [25]
    Mrs Marilyn Jefferies, his teacher for a period of 18 months between the dates of June 2000 and December 2001, gave evidence that she had attempted to develop a moral conscience in him. Her efforts included, she said, attempting to instil and develop the ability to differentiate between right and wrong. When asked if the child had in fact developed a moral conscience that would enable him to know right from wrong she answered, ‘I would say so. That's only an opinion, but I would say so.” (transcript pg 30 11 5-22). However in response to another question by counsel, Mrs Jefferies qualified her answer with the statement, ‘I think I can only really comment about his learning behaviour...’ (T 28 1 53). Further, Mrs Jefferies stated that she had no formal psychological training (T 31 11 10-15). Nevertheless, by virtue of the length of her exposure to the accused, a fair degree of weight can be attached to evidence of Mrs Jefferies.

The Report of Mr. Luke Hatzipetrou

12. [26]
    Mr Hatzipetrou, a clinical psychologist, examined the child last year and diagnosed significant disorders involving, in particular, serious behavioural and learning deficits. In his report of 17 December 2001, he said:

Given the clinical features of ADHD and Asperger's Syndrome, it appears Mr. McCormick's capacity to understand the nature and consequences of his action [sic] at the time of the offences was deprived. (Page 7).

This observation does not directly address the question whether or not the accused child had the capacity to know that he ought not to do an act, but it can reasonably be inferred that if a child is not able to understand the nature of his actions, then he would lack the capacity to understand that he should not do something.

12. [27]
    The psychologist also said:

Coupled with the complex clinical features of Asperger's Syndrome and ADHD, it is likely Mr. McCormick experienced deterioration in mental state prior to and during the period of the offences. Given Mr. McCormick's assessed intellectual functioning and mental state at the time of the offences, his reasoning abilities, social judgement and impulse control were likely to be significantly impaired. (Page 8).

This statement does not greatly assist in respect of s 29, as it does not indicate the extent to which the mental state of the accused had deteriorated, nor whether such deterioration denied the accused the capacity to know that he ought not to do the act or make the omission. Nevertheless, when considered in conjunction with the first observation, it makes the Crown's task of rebutting doli incapax more difficult.

The Evidence of Mr Hatzipetrou

12. [28]
    On the first day of the hearing Mr Hatzipetrou gave oral evidence via a telephone link, and said:

Mr Crofton (Counsel for the accused): You've been supplied with a copy of section 29 of the Criminal Code? (Page 6 para 50) - Yes, I have.

Yes, now, that is headed ‘Immature Age?’ (page 6, para 53) - That's right.

Can you comment on Master McCormick's capacity to know that he's doing the acts which he's alleged to have done in the sense that - whether he knew he ought not to have done those acts or not? (para 58) - Looking at the section there, at the time of the assessment Mr McCormick did not appear to have the capacity of not - of he not do the act and that much of his comments regarding this behaviour were learnt responses from people such as his mother and police who had advised him after the event itself... (page 7, para 1)

And, more specifically, his understanding of the difference between right and wrong in relation to these offences, do you think he had that capacity at that time? (page 7, para 12). - Again, both from evidence available and speaking to him, my clinical impressions were that he didn't.

12. [29]
    The issue before the Court concerns the question whether the accused child ought to have known that he ought not do the act that constitutes the offences with which he is charged. The Crown contended that Mrs Jefferies' evidence established he had developed a moral conscience and, therefore, possessed the requisite capacity to rebut the presumption contained in s 29. The Crown did not call any expert witnesses to that end. I accept that Mr Hatzipetrou does possess expertise in diagnosing psychological disorders, and describing their effects, and he was certain this child has serious behavioural problems which can involve an absence of understanding that some acts are wrong. He also examined the child, and his specific clinical impression was that the accused did not comprehend that he ought not, at the relevant time, do the acts with which he is charged. That evidence is persuasive, and tells strongly in favour of the conclusion the Crown has not succeeded in rebutting the presumption.