R v IP

1. [1]

   THE COURT: The Director of Public Prosecutions appeals pursuant to s 5F(3A) of the Criminal Appeal Act 1912 from rulings by her Honour Sweeney J on 20 November 2023 dismissing objections taken by the Crown to the admission of certain portions of expert evidence directed to the question of whether the Crown can rebut the presumption of doli incapax.

2. [2]

   IP is currently on trial for murder. His trial commenced before her Honour on 7 November 2023. The Court heard the Crown’s appeal on 24 November 2023 during a brief pause in the trial. To avoid further delaying the trial, orders were made on 24 November 2023, but our reasons for the orders made were reserved until today.

3. [3]

   IP was 13 years and 5 months old at the time of the alleged offence. Because he was over the age of 10 years but under the age of 14 years, the Crown must rebut the common law presumption that he was doli incapax, that is, unable to appreciate the difference between right and wrong: see RP v The Queen (2016) 259 CLR 641; [2016] HCA 53 at [8], reproduced below.

4. [4]

   In dealing with the Crown’s objection to the evidence, her Honour published two ex tempore judgments. In the first of those, her Honour outlined the basis of Crown’s objection to those portions of the experts’ reports:

5. [5]

   Following a detailed review of the authorities, to which reference is made later in these reasons, her Honour concluded as follows:

6. [6]

   Following that ruling, the Crown made a further application to limit the experts’ opinions pursuant to s 136 of the Evidence Act 1995, so that they could not be used for the purpose of deciding the issue of doli incapax. Her Honour rejected that application as well in the following relevant terms:

7. [7]

   Although the Director’s Notice of Appeal originally sought to challenge both of her Honour’s rulings, the only order sought in this Court was that the use to be made of the specific portions of the experts’ reports to which objection was taken be limited under s 136 in the way described earlier.

8. [8]

   The Director’s submissions in this Court were as follows. She submitted that there is a distinction between understanding moral wrongfulness on the one hand and a reduced ability to act in accordance with that understanding on the other hand. To the extent that the experts are of the opinion that the young person’s abilities were compromised by emotional and other dynamic circumstances arising at the time of the killing, those opinions are not relevant to the legal question of doli incapax. The Director submitted that while IP’s youth, his Attention Deficit Hyperactivity Disorder (“ADHD”) and Post Traumatic Stress Disorder (“PTSD”) and the heightened emotional circumstances in which he found himself might be relevant to the assessment of his capacity for self-control or to a propensity to engage in impulsive behaviour, they cannot change his underlying understanding of the moral wrongfulness of that conduct.

9. [9]

   The Director acknowledged that the portions of the experts’ reports to which objection is taken will be elicited in the trial in any event on the question of intent. However, she contended that properly instructed, these opinions should not be before the jury on the question of doli incapax. The Director submitted that the jury should be directed that in considering whether or not the Crown has proved beyond a reasonable doubt that IP knew that what he did was seriously wrong, it is his general state of knowledge that the jurors are concerned with, not the question as to whether that knowledge was somehow temporarily suspended when he stabbed Brody Morris on account, or by reason, of external events or circumstances.

10. [10]

    It is evident from the respondent’s submissions that there is no issue about the test to be applied, or the inquiry that is to be made, for the purpose of assessing doli incapax. The respondent submitted that understanding in the abstract that certain criminal offences are wrong is relevant to the question of whether the Crown has rebutted doli incapax, but it is not the question itself. The question is always concerned with actual knowledge at the time of the performance of the particular conduct that that conduct is seriously or gravely wrong: the test is concerned with the existence or absence of knowledge of the moral wrongfulness of the specific conduct engaged in, regardless of whether the child knows that it constitutes a crime or what the criminal offence is.

11. [11]

    The respondent submitted that the issue to be proved by the Crown is whether the particular actually child knew, at the time of committing the particular conduct charged, that his conduct was seriously or gravely morally wrong. However, the respondent also submitted that “it is essential that the conduct in the particular circumstances in which it occurred was known to the child to be seriously wrong at the time”. The italicised words effectively represent the difference between the parties in this appeal.

12. [12]

    Finally, on the question of jurisdiction, the respondent maintained that it is not clear that rejection of the request to limit the use of evidence in question has substantially weakened the Crown case.

13. [13]

    The authorities to which both parties referred, both before the trial judge and in this Court, are relevantly as follows.

14. [14]

    The High Court in RP v The Queen dealt with the issue at [8] to [12] as follows:

15. [15]

    More recently, in BDO v The Queen [2023] HCA 16, the High Court confirmed, in the context of considering the test in the Queensland Criminal Code, that doli incapax is concerned with the state of a child’s intellectual and moral development, continuing to approve the distinction between knowledge of wrongfulness and knowledge of naughtiness. The Queensland provision, however, is relevantly different to the common law, instead propounding a test based upon a child’s capacity to know, as opposed to the child’s knowledge. Section 29(2) of the Queensland Criminal Code makes this clear:

16. [16]

    In her first judgment, the trial judge indicated that the High Court statements in RP and BDO were “to be preferred as authoritative rather than the statements of Bray CJ in M”, which her Honour described as obiter “but also not consistent with the High Court’s more recent statements of the law”. One particular passage from the judgment of Bray CJ in The Queen v M [1977]16 SASR 589 at 593, to which her Honour was referring, is as follows:

17. [17]

    Her Honour endorsed this Court’s decision in AL v Regina [2017] NSWCCA 34 as “authoritative”. Her Honour quoted what was said in that case at [149]:

18. [18]

    In oral submissions in the court below, Mr Krisenthal of counsel for the accused, submitted as follows:

19. [19]

    Mr Krisenthal also submitted that “one needs to look at the individual at the time of the offence, the evidence of the disposition of the child may be of assistance in resolving the question of doli incapax.” Mr Krisenthal continued:

The evidence

1. [20]

   Although it is unnecessary to do so, a better understanding and appreciation of the differing contentions of the parties can be gleaned from a consideration of the disputed material. While views may differ about whether the determination of the doli incapax question is even or ever a matter for expert evidence, or whether such opinions can legitimately assist a jury in deciding the fact, several psychiatrists and psychologists have been qualified for that purpose by the parties in this trial. The disputed passages or extracts are set out in the following Schedule:

2. [21]

   It is apparent that significant portions of the extracted opinions deal with matters that range beyond the single inquiry about whether IP knew that his actions were seriously morally wrong as opposed to simply naughty.

Consideration

1. [22]

   The question of the state of IP’s knowledge of the wrongness of his actions at the time he stabbed Brody Morris is not an inquiry about his then current or prevailing emotional state or about his ability at that time to control his impulses or about whether he was so affected by strong emotion that it rendered him incapable of resisting the urge to perform the relevant act. Nor are the possible effects upon him of PTSD or ADHD (as disclosed in the expert evidence in this case) of relevance in the assessment of his knowledge of wrongness. It is obvious that issues such as these have the potential to become significant in the determination of things such as mental illness or voluntariness, and whether he acted deliberately or whether he performed a deliberate act with the necessary intention. They are not relevant in this case to his state of knowledge of the wrongness of his actions.

2. [23]

   The burden of IP’s submissions made to her Honour in the trial and on behalf of the respondent in this Court was that incapacitating circumstances affecting IP’s judgment or decision making abilities that were arguably present at the time, or which may have become affected in the course, of the fatal stabbing of Brody Morris were legitimate matters for a jury to consider on the issue of whether the Crown has rebutted the presumption of doli incapax. However, there is an important distinction between the existence of a particular state of knowledge in a child on the one hand and the same child’s ability to act in a way that mirrored the existence of that knowledge on the other hand. The first is directed to whether a child between the ages of 10 and 14 lacks the capacity for mens rea because of the child’s state of moral and intellectual development, consistent with RP; the second is concerned with whether the Crown is able to prove the elements of the charge beyond reasonable doubt.

3. [24]

   The respondent’s submissions should be rejected. The extracted portions of the experts’ opinions conflate these separate questions. Having regard to their particular specialties, and the fact that their various reports were clearly prepared for more than one purpose, that should not be taken as a criticism. However, opinions about capacity or emotional maturity in the context of assessing issues such as whether the relevant act was deliberate or was performed with the requisite intention should not be permitted to degrade or infect the separate factual inquiry about the existence of a particular state of moral and intellectual development and knowledge.

4. [25]

   That inquiry focuses attention on the state of development of the child: is there evidence capable of rebutting the presumption that the child is doli incapax at the time of the commission of the alleged offence, by reference to the stage of moral and intellectual development the child has reached? This may include having regard to any evidence of the child’s level of intelligence and educational attainment, or of any moral guidance and instruction provided to the child, or perhaps evidence concerning the sort of environment in which the child has been raised and from which a sense of morality and rightness and wrongfulness may be derived. It is not necessary to that end that the evidence establishes, to adopt the phrase used by Bray CJ in The Queen v M, that the child is “cogitating on the ethical correctness” of the voluntary act at the exact moment the act is carried out. What is required is that the child has reached a developmental stage where he or she is able to and does comprehend the serious moral wrongfulness of the act, and to discern right from wrong.

5. [26]

   A mental illness or other disorder may have an impact upon the child’s ability actively to access the knowledge of serious moral wrongfulness at the moment the relevant act is performed, or to be restrained by it, but that is a separate question. Evidence of a disorder that has or may have that effect could be relevant to a defence of mental health impairment, or substantial impairment, or it may be relevant to the capacity to form the necessary intent; it is not relevant to doli incapax (unless the disorder of itself prevents the child from reaching a state of moral and intellectual development where the serious moral wrongfulness of the conduct can be understood). For example, a child who has reached a stage of development allowing that child to understand the serious moral wrongfulness of hitting another person in the head with a brick, to again borrow from Bray CJ in The Queen v M, and thus be doli capax, will not be returned to a state of doli incapax only because an active psychotic disorder severely clouded the child’s mind at the precise moment of doing the relevant act. Evidence of the psychotic illness will be relevant to go to a defence of mental health or substantial impairment, or the question of intent, but not to the jury’s consideration of the rebuttal of the presumption. It could be relevant to doli incapax only if the child’s mental illness had adversely impacted upon intellectual and moral development.

6. [27]

   The expert evidence to which objection was taken in this matter is not admissible to go to the question of doli incapax and the Crown’s appeal must be upheld.

The jurisdictional issue

1. [28]

   Although it was raised but faintly, the respondent additionally referred to the prospect that the trial judge’s rejection of the Crown’s application to limit the use to be made of the expert evidence did not “eliminate or substantially weaken the prosecution’s case” such as to enliven the Court’s jurisdiction under s 5F(3A) of the Criminal Appeal Act. The provision is in these terms:

2. [29]

   The operation of the provision has been considered by this Court on a number of occasions. In R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112 Spigelman CJ observed:

3. [30]

   In this case, one of the principal issues, perhaps even the principal issue, for the determination of the jury is whether the Crown can rebut the presumption of doli incapax. The Crown has available to it a weight of evidence that a jury might accept as rebutting the presumption. This evidence includes evidence from the respondent’s teachers at school that points to him being a capable if disruptive student of at least average intelligence. There is evidence to the effect that the respondent, in common with other students at his school, was provided with information, in class and at assembly, as to the dangerousness of knives in the context of a ban on knives being brought to school. The Crown intends to tender evidence of telephone messages exchanged between the respondent and others in which IP acknowledged that using a knife in a fight could lead to his arrest and imprisonment. There is also evidence that the respondent was specifically warned by his brother and another older boy against the use of knives in a fight; the warning delivered by IP’s brother related to IP taking a knife to the fight with Brody Morris in which Brody Morris was killed. The Crown can lead evidence that, having secretly taken a knife to his fight with Brody Morris despite the warning, and used it to stab Brody Morris three times, the respondent hid the knife and lied about its use, telling others that he had used a stick.

4. [31]

   The jury can properly have regard to this and other evidence in deciding whether the presumption is rebutted. The opinions of experts, layering a medical question over what should be a factual one, would have the likely effect of depriving the evidence of its force and capacity to rebut the presumption. This would in our conclusion substantially weaken, if not eliminate, the Crown case against IP.

5. [32]

   The Court was thus seized with jurisdiction to make the orders the Crown seeks.

6. [33]

   Accordingly, the orders of the Court were as follows:

   1. (1)

      Allow the appeal.

   2. (2)

      Set aside the orders made by her Honour Sweeney J on 20 November 2023.

   3. (3)

      In lieu thereof, order that the evidence of the experts described in the Schedule appended to these orders be admitted, limited pursuant to s 136 of the Evidence Act 1995 to issues in the trial excluding the issue of doli incapax.