ACT courts deal with who should bear onus of proof of wrongdoing knowledge in 13-year-old's case

The teen had pleaded not guilty in the children's court to minor theft.

At the hearing, the defence argued there was no case to answer because the prosecution's pre-hearing evidence did not show the child knew his conduct was wrong, a requirement for him to be criminally responsible.

The defence argued that under the ACT's Criminal Code 2002, the prosecution had the burden of proving that the child knew his conduct was wrong and because of that, he was not burdened to give evidence of his denial of such knowledge.

The argument was contrary to the decision in a 2019 ACT Supreme Court appeal judgment.

In that case, the children's court had dismissed the charges because the prosecution failed to argue against the presumption of "doli incapax" - that is incapable of crime.

The Supreme Court then allowed the prosecution appeal with the judge concluding that there was an evidential burden on the child that had not been dealt with first and, therefore, the magistrate was wrong to dismiss the charges.

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In this latest case, the accused did not seek to deal with the evidential burden first and accepted that the 2019 supreme court decision was binding upon the magistrate.

In February, a guilty verdict was delivered and the charge dismissed before the child's lawyers launched a supreme court appeal.

Under the relevant statutory provisions, whether the child bore a burden to show evidence he did not know his conduct was wrong depended on the relationship of two sections of the criminal code.

The first states under Circumstances where there is no criminal responsibility states that for 10-14 year olds, they can be criminally responsible for an offence only if they know their conduct is wrong in which the burden of proof rests on the prosecution.

The second under Evidential burden of proof for defence states that a defendant wanting to deny criminal responsibility by relying on any parts in the first section, as it is in this case, has the burden of providing evidence to show that there was a reasonable possibility that they did not know their conduct was wrong.

That burden is removed only if there is sufficient prosecution evidence to prove otherwise.

The issue for the court was whether the evidential burden on a defendant applies to their knowledge about their conduct or whether the fact that the onus on the prosecution to prove that knowledge places the burden of proof entirely on the prosecution.

During the supreme court appeal in this case, Jon White SC for the child argued that the explanatory memorandum for what became the ACT code made it clear that "to establish criminal responsibility in these cases, the onus will be on the prosecution to prove beyond a reasonable doubt that the child knew that his or her conduct was wrong".

Mr White said that that aspect should stand on its own and not be affected by a defendant wanting to deny criminal responsibility.

He said the decision to allow the appeal in the 2019 case was wrong and failed to consider the code's explanatory memorandum.

Trent Hickey for the respondent said the clear meaning of the code is that evidential burden on a child defendant must be dealt with first before the prosecution bears the legal burden of proving beyond reasonable doubt that the child knew the conduct was wrong.

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He said that if the explanatory memorandum says no evidential burden exists on a defendant, then it has not addressed the two relevant sections of the code or that it is wrong.

Mr Hickey said Mr White's interpretation of the code would leave the evidential burden of proof on a defendant with no work to do when it came to criminal responsibility.

In a judgment on Friday, the Supreme Court allowed the appeal, saying the burden of proof is always on the prosecution.

"It cannot be said that the legislative purpose to impose an evidential burden on an accused in order to give rise to the legal burden on the prosecution to prove knowledge of wrongfulness beyond reasonable doubt has been sufficiently clearly expressed," the court said.

"Rather, that legal burden is at all times on the prosecution."

It said the magistrate "was obliged to consider whether, even though no evidential burden had been discharged by the appellant, the Crown had proved beyond reasonable doubt that the appellant knew his conduct was wrong".

The latest judgment comes as the ACT government is in the process of raising the age of criminal responsibility to 14.

A recent government-commissioned report recommended children under 14 who engage in criminal behaviour should be met with a therapeutic response and that early intervention services were vital.

The government also recently published a report about the public feedback about the matter.

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