RP v The Queen [2016] HCA 53: Children with Capacity for Criminal Responsibility

The High Court has today (21 December 2016) allowed an appeal from the Supreme Court of New South Wales Court of Criminal Appeal in the case of RP v The Queen [2016] HCA 53. The Court found that there was not sufficient evidence to rebut the presumption that a child aged 11 lacked the capacity to be criminal responsible for his action. The High Court overturned the appellant’s conviction and entered verdict of acquittal.

Background

The appellant and the complainant were half-brothers aged approximately 11 years and 6 months and 6 years and 9 months respectively at the time of the offence. In the first offence, the brothers were at home without adult supervision when the appellant grabbed the complainant and held him down. The appellant put his hand over the complainant’s mouth in response to the complainant’s crying and protesting. The appellant ceased the intercourse when he heard an adult returning to the house. The second offence occurred a few weeks later when in similar circumstances, the brothers were at home alone without adult supervision. The appellant took hold of the complainant and only stopped intercourse when he heard an adult returning. These facts were not in question. The issue was whether the prosecution had successfully rebutted the presumption that the appellant, being 11 at the time, did not know that his actions were seriously wrong in a moral sense.

At age 17 and 18, the appellant was assessed as being in the borderline disabled range of intellectual functioning. He was found by the trial judge to be of ‘very low’ intelligence. Nevertheless, the trial judge held the circumstances surrounding the first offence proved beyond reasonable doubt that the presumption had been rebutted. He consequently ruled that in the second offence, it would logically follow that the presumption was also rebutted.

The Court of Criminal Appeal agreed with the trial judge. The Court ruled that the appellant’s understanding of the wrongness of his actions in the first offence would inform him on the second occasion that that was also wrong.

High Court Appeal

The majority of the High Court disagreed on both offences. The Court found that there was not sufficient evidence of the environment in which the appellant was raised to draw any conclusions regarding his moral compass or moral development. Furthermore, the Court found that with the appellant’s intellectual limitations, it was not opened to hold that the appellant had understood the moral implications of his conduct beyond a reasonable doubt. 

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RP v The Queen [2016] HCA 53