Rye v WA

(2021) 288 A Crim R 174; [2021] WASCA 43

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Criminal responsibility
3. › Children
4. › Presumption of doli incapax
5. › Child aged between 10 and 14 years
6. › Capacity to know that conduct was wrong
7. › Whether s 29 requires proof of capacity to know as distinct from actual knowledge
8. › Whether 'ought not to do the act' means morally wrong by ordinary standards of reasonable adults
9. › Criminal Code (WA), s 29
1. Criminal Law
2. › Appeal against conviction
3. › Trial judge's failure to make findings on essential element
4. › Failure to address capacity under s 29 of Criminal Code (WA)
5. › Whether miscarriage of justice occurred
6. › Criminal Appeals Act 2004 (WA), s 30(5)
1. Criminal Law
2. › Appeal against conviction
3. › New trial or acquittal
4. › Whether evidence at trial sufficiently cogent to support conviction on capacity issue
5. › Whether ordering new trial would give prosecution opportunity to supplement defective case
6. › Criminal Appeals Act 2004 (WA), s 30(5)

Quick Take

Section 29 of the Criminal Code (WA) requires the prosecution to prove beyond reasonable doubt that a child aged 10-14 had capacity to know that the conduct was seriously wrong by the ordinary standards of reasonable adults, which is distinct from proving actual knowledge and distinct from proving the child knew the conduct was merely naughty, mischievous, or legally wrong. Evidence of the furtive nature of offending and the secluded location alone, without evidence of the child's education, social circumstances, and intellectual and moral development, is insufficient to establish the requisite capacity.