Director of Public Prosecutions (NSW) v NW [2015] NSWChC 3

Director of Public Prosecutions (NSW) v NW [2015] NSWChC 3

Considering the evidence cumulatively, including NW's previous consequences for sexualised behaviour, more than 8 months of specialised Rural New Street counselling, safety rules and instruction about inappropriate touching, NW's earlier apology and promise after a sexual incident, the complainant's protest, the sexualised and heinous nature of the alleged assault on a 5 year old child, NW's age, and the close timing of earlier incidents with consequences, the magistrate was satisfied beyond reasonable doubt that NW knew what he was doing was gravely or seriously wrong in a moral sense. The prosecution therefore rebutted the presumption of doli incapax.

Jurisdiction
Australia
Judgment Date
27 August 2015
Procedural Posture
Criminal Charge of Indecent Assault Upon a Person Under the Age of 16 Years / Defended Hearing Voir Dire on Whether the Presumption of Doli Incapax Was Rebutted
Outcome
Presumption of doli incapax rebutted.
Legal Topics
['aggravated Indecent Assault' 'doli Incapax' 'rebuttable Presumption' 'previous Conduct' 'sexual Harm Counselling' 'intellectual Disability']
['criminal Law' "children's Criminal Proceedings"] ['aggravated Indecent Assault' 'doli Incapax' 'rebuttable Presumption' 'previous Conduct' 'sexual Harm Counselling' 'intellectual Disability']

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Procedural Posture

Criminal Charge of Indecent Assault Upon a Person Under the Age of 16 Years / Defended Hearing Voir Dire on Whether the Presumption of Doli Incapax Was Rebutted

Legal Issues

  1. 1 ['Whether the prosecution rebutted beyond reasonable doubt the presumption of doli incapax for a young person aged approximately 13 years and 1 month at the time of the alleged offence.' "Whether evidence of previous sexualised conduct, consequences, specialised counselling, safety planning, and the complainant's protest showed that NW knew the alleged conduct was seriously wrong in a moral sense." 'Whether evidence suggesting low intelligence or mild intellectual disability prevented a finding that NW appreciated the serious wrongness of the conduct.']

Ratio Decidendi

Considering the evidence cumulatively, including NW's previous consequences for sexualised behaviour, more than 8 months of specialised Rural New Street counselling, safety rules and instruction about inappropriate touching, NW's earlier apology and promise after a sexual incident, the complainant's protest, the sexualised and heinous nature of the alleged assault on a 5 year old child, NW's age, and the close timing of earlier incidents with consequences, the magistrate was satisfied beyond reasonable doubt that NW knew what he was doing was gravely or seriously wrong in a moral sense. The prosecution therefore rebutted the presumption of doli incapax.

Court Disposition

Presumption of doli incapax rebutted.

Orders

  • ['The presumption of doli incapax is rebutted.']