MAGISTRATES COURTS OF QUEENSLAND

CITATION:	Queensland Police Service v. KML [2024] QChCM 1	
PARTIES:	QUEENSLAND POLICE SERVICE
(Prosecution)
v
KML 
(Defendant)	
FILE NO:	CCM-00010783/24(1)	
DIVISION:	Magistrates Court	
PROCEEDING:	Childrens Court - Committal Proceeding	
ORIGINATING COURT:	Townsville	
DELIVERED ON:	9 August 2024	
DELIVERED AT:	Townsville	
HEARING DATE:	25 July 2024	
MAGISTRATE:	V. Keegan	
ORDER:	The charges are committed to the Childrens Court of Queensland.	
CATCHWORDS:	CRIMINAL LAW – CAPACITY – CRIMINAL RESPONSIBILITY – COMMITTAL PROCEEDING – presumption of doli incapax – evidence necessary to rebut

Criminal Code 1899 (Qld), s29
Justices Act 1886 (Qld), s.108, s110A
Youth Justice Act 1992 (Qld)

AL v The Queen [2017] NSWCCA 34
BDO v The Queen [2023] HCA 16
Gant v Magistrate Kucks [2013] QSC 285
M v J (1989) Tas R 212
R v B [1997] QCA 486
R v EI [2009] QCA 177
R v F; Ex parte A-G [1998] QCA 097
R v JJ; R v JJ; ex parte A-G [2005] QCA 153
RH v DPP (NSW) [2013] NSWSC 520
RP v The Queen [2016] HCA 	
		
APPEARANCES:	Sergeant T. Madsen, Queensland Police Service
H. Armitage, Legal Aid Queensland	

The Application 
[1]	This is a committal proceeding where I am required to determine whether the evidence is sufficient to put KML upon trial for two offences:
(a)	An attempted unlawful use of a motor vehicle; and
(b)	An attempted robbery whilst armed with scissors using actual violence.
[2]	KML was approximately 12 ½ years of age at the time and so she is presumed to not be criminally responsible for the offences (‘doli incapax’) unless it is proved at the time that she had the capacity to know she ought not do the acts.
[3]	The submissions made on behalf of KML is that there is no evidence to rebut the presumption and so she should be discharged in relation to both offences.
Summary of facts
[4]	The offences are alleged to have occurred in the vicinity of the North Ward Shopping Village within minutes of each other at approximately 3.30pm on 23 May 2024. The first complainant had placed groceries into the rear of her car that was parked on Mitchell Street and was beside the driver’s door when she heard someone ask her for the time. She turned and saw a young person who she estimated to be about 14 years old and male and two others nearby in the back Coles carpark. She told the young person it was 3.30 and got into her car. The young person yelled ‘give us your car’ at the same time the complainant pressed the lock button locking all the doors. The young person tried to open the driver’s door aggressively yelling ‘give us your fucking car’. This happened about four times before the complainant started reversing. The young person backed away and joined the other two who had been watching. The complainant drove away and parked nearby calling the police. From the descriptions given and CCTV footage the young person described as being male is the defendant child.
[5]	At approximately 3.30pm a Coles employee was arriving for work and had parked behind Coles near the loading dock off Mitchell Street. As she parked, she noticed some people approach and surround her car. A young female knocked on her window and asked her the time. There was also another young female and a male. The three talked about the back doors being unlocked before the first female opened the driver’s door and said, ‘give me your car’. She was armed with a pair of scissors and ‘swiped’ at the complainant approximately three times. She then struck the complainant in the shoulder with a downward stabbing motion causing a small cut to her shoulder. The complainant was telling her no and to leave her alone she got out of the car and tried to take the scissors from the girl. The girl started to back away towards her friends and the complainant tried to phone her manager using the verbal ‘Siri’ command on her mobile phone. One of the group said, ‘she is calling someone’ and they all ran off towards Eyre Street.
[6]	CCTV footage shows KML and the two co-accused running. A different camera at the entrance of the shopping centre, shows KML being joined by the female co-accused. KML placed the scissors under her watchband before the two girls entered the centre.
[7]	Police were called and uniformed officers in a marked police car responded. They were informed that the trio had left the centre and directed to their location. The trio were located and arrested. They each gave their names and denied possessing any weapon. The officers returned to the location of the arrests and found a pair of scissors matching the description given by the complainant approximately 20 metres from where they were arrested. There is evidence of KML’s fingerprints on the second complainant’s car. She is alleged to be the principal offender.

Evidentiary threshold in committal proceedings

[8]	This committal has proceeded pursuant to s.110A of the Justices Act 1886 in that the statements and exhibits were tendered in lieu of oral testimony.

[9]	The assessment to be undertaken is whether there is sufficient evidence to place KML upon trial for either of the offences charged. A prima facie case needs to be established. This may also be expressed as determining ‘whether a reasonable jury properly instructed could return a verdict of guilty.’ 

[10]	The only issue to determine is whether there is evidence to rebut the presumption against criminal responsibility.

Doli Incapax
[11]	Children are provided with some protection from criminal responsibility because the law presumes that, because of their moral immaturity, they do not necessarily understand the wrongfulness of an act. In Queensland a child under 10 years of age is not criminally responsible for any act or omission. Between the ages of 10 and 14 the presumption of doli incapax is rebuttable if it can be shown that the child had the capacity to know that they not do the act or make the omission.

s.29(2) of the Criminal Code provides:

"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 the capacity to know that the person ought not to do the act or make the omission."

[12]	It is important to note that the provision in the Code differs from the common law where actual knowledge, rather than a capacity to know, is required to rebut the presumption of criminal responsibility. The High Court in BDO v The Queen [2023] HCA 16 has made it clear that this is a “fundamental distinction”. Bearing in mind the different threshold, authorities that consider the common law provide assistance in relation to evidence that may rebut the presumption. 

[13]	There is no objective test to determine doli incapax, it is a subjective assessment in the context of the specific allegation and the and the intellectual and moral development of the specific child.

[14]	The mere commission of an act is not evidence of capacity but the more obviously wrong the act, the easier it is to rebut the presumption. For example:
(a)	A burglary of a fire station by a 12 year old in company where a jemmy was used to a break lock (forceful entry, evidence of planning by having the jemmy, boasting to others about the ‘break in’): RH v DPP (NSW) [2013] NSWSC 520.
(b)	The use of a knife by a 12 year old to threaten a teacher: In R v B [1997] QCA 486.

[15]	In contrast, a 13 year old child charged with discharging an air rifle, which was an offence for a person under the age of 16 years to do, was found not to have capacity under the Tasmanian Criminal Code because his father would fire the rifle and he may have assumed that it was also not wrong for him to do so: M v J (1989) Tas R 212.

[16]	Matters that children have personal knowledge of also make it easier to rebut the presumption. The plurality in RP v The Queen noted:

“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 more likely better able to understand control of his or her possessions and the theft of others’ property compared to offences such as damaging public property, fare evading, receiving stolen goods, fraud or forgery.”

[17]	Again, in contrast, the Court considered the presumption harder to rebut in offences involving sexual misconduct because sexual intercourse itself is not morally wrong and it is not uncommon for children to engage in sexual play which they endeavour to keep secret.

[18]	Evidence rebutting the presumption can be adduced from a variety of sources:
(a)	The age of the child
Many authorities indicate that the age of the child is relevant, that the threshold for rebuttal is higher for a younger child and lower for an older the child. However, the High Court in RP v R expressed caution on adopting a rigid approach with age as it assumes children develop at a uniform rate; whereas the focus is on the individual child and their specific development. Nevertheless, age is a relevant factor when considered in combination with other evidence.

(b)	Admissions
Beyond admissions made in police interviews for the offence under consideration, previous dealings with police and courts are probative of capacity. The Queensland Court of Appeal in R v F; Ex parte A-G [1998] QCA 097 an Attorney-General’s reference on points of law, considered that admissions in previous interviews, police cautions, and pleas of guilty were admissible and it would be rare for such evidence to be excluded on the basis that its prejudicial affect outweighed its probative value. Whilst not specifically referred to I consider that all diversionary processes under the Youth Justice Act (1992) would also be admissible.

(c)	Circumstances surrounding the act
Evidence of the surrounding circumstances including conduct closely associated with the act is admissible to prove capacity. For example:
(i)	In R v F; ex parte A-G conduct identified that may be relevant included ‘asserting a false alibi, rendering a victim incapable of identifying the accused or preventing a victim from summoning assistance during the commission of the offence.’ 
(ii)	Evidence of planning, by bringing a jemmy, and using it to gain entry into a building.
(iii)	Statements made by the child such as boasting about the act or threatening to hurt a victim if they disclosed the act.
(iv)	Running away, although may be equivocal, in context may indicate an appreciation of the wrongfulness of the act.

(d)	Evidence from adults that have an association with the child
Such evidence may come from a variety of sources. Examples are:
(i)	Parents can give evidence which may go to upbringing, education, and cognitive abilities. 
(ii)	Teachers may also give evidence of their dealings with the child. 
(iii)	Contemporaneous school reports may provide general evidence of a child’s performance and behaviour at school. 

(e)	Expert evidence
Expert evidence may be adduced by either the prosecution or the defence. Relevant factors in considering this type of evidence include:

(i)	It is just one piece of evidence to be considered with the whole of the evidence.

(ii)	The time lapse between the alleged offence and an assessment may affect its probative value.

(iii)	Reports prepared for other purposes may provide general evidence of intellectual deficits. In such cases the presumption is harder to rebut as it needs to be proved that the child had the capacity despite their intellectual limitations.

[19]	Ultimately, if relevant, evidence can be admitted from any number of sources and inferences drawn. It is a question of weight to be placed on each inference and the evidence is to be considered as a whole.

Submissions

[20]	On behalf of KML it was submitted that to negative the presumption the prosecution had to lead evidence such as a record of interview or details of previous dealings with police officers.

[21]	The prosecutor accepted that the brief of evidence did not contain such evidence but 

submitted that inferences could be drawn from the evidence to rebut the presumption, namely:
(a)	Running from the scene was ‘flight’ and revealed a consciousness of guilt.
(b)	The scissors were secreted under the watchband.
(c)	The scissors were discarded 20 metres from where KML was arrested indicating disposal to avoid detection.
(d)	As there were three offenders there was an inference to be drawn that there had been discussions or a plan to demand the cars.

Decision

[22]	I consider the following facts to be relevant:

(a)	The act of asking for the time was a deliberate act of deception undertaken to further the object of obtaining the cars and demonstrates a level of calculation.

(b)	KML was verbally aggressive towards the complainant in the initial event demonstrating an awareness of wrongdoing on her part as it was forceful behaviour employed to achieve the desired goal.

(c)	After she failed in the initial attempt to obtain a car she escalated her behaviour: she armed herself with scissors and used them to perpetrate violence in order to overcome any resistance.

(d)	The possession of scissors may be indicative of some planning.

(e)	When it was thought the second complainant was summoning help KML ran. This is not an equivocal reaction because in removing herself it demonstrates an appreciation of the wrongfulness of the act.

(f)	Placing scissors under her watchband when entering the shopping centre demonstrates an awareness that she should not be walking around with scissors.

(g)	She denied possession of a weapon when approached by police.

(h)	She discarded the scissors before being stopped by police indicating a decision to disassociate herself from the instrument.

[23]	Additionally, because both acts were obviously wrong the threshold to rebut the presumption is lower compared to an act that is not so obviously wrong. 
[24]	Noting that at committal the prosecution needs to prima facie rebut the presumption, I consider that in combination all of the circumstances are sufficient to do so, and I commit both charges to the Childrens Court of Queensland at Townsville.