Allen v Farr [1992] QCA 330

COURT OF APPEAL [1992] QCA 330 MACROSSAN CJ McPHERSON JA AMBROSE J CA No 182 of 1992 KAREN JOY ALLEN v. DONALD ALFRED FARR Appellant BRISBANE ..DATE 20/08/92 JUDGMENT -- 1 of 4 -- 200892 THE CHIEF JUSTICE: The appellant was convicted of three assaults of an aggravated nature. They were aggravated because the victims in each case were females. The assaults in question consisted of the appellant’s spitting upon these females in the Myer Centre in Brisbane. The appellant was a young lad but he was over the age of ten, to which the Code refers, and was between the ages of ten and fifteen relevant for the purposes of section 29 of the Code. He was in fact eleven years of age. Over a period of the months of December 1991 and January 1992, he carried out what could be described fairly as a mini campaign of spitting upon women in the Myer Centre. The particular victims appear to have been girls operating lifts or young women employed, in any event, in the Myer Centre. He was not provoked in any way to do it. He reacted according to some antisocial promptings, apparently, but in any event he was charged for his wrongdoing and convicted by a Magistrate. The Magistrate found the relevant capacity which is referred to in section 29 of the Code, that is, a capacity to know that he ought not to do the act. They are the relevant words for us. The question then for the Magistrate, amongst others, to decide was whether it had been shown beyond reasonable doubt to his satisfaction that this young lad had the capacity to know that he ought not to have spat upon these women in the Myer Centre. No-one contested before us that the element did not have to be proved beyond reasonable doubt and that was the approach the Magistrate adopted. It is accepted by counsel for the respondent before us that the test is subjective, that is, that we have to look at the capacity of the particular person in question in deciding whether the necessary element has been proved under a section like this. there can be a heavy ingredient of social responsibility in many offences declared to be legally wrong under the -- 2 of 4 -- 3 Code and under other provisions of the criminal law but we are not directly concerned with that here. It seems to be there is nothing elusive about the relevant capacity in this case which is to know whether spitting on people was something that ought not to be done. The Magistrate had the benefit of seeing a video of an interview taken with the boy which is instructive. While we have not seen the video we have been provided with a transcript of what the boy there says. Glancing through it, it seems to me to be a lucid record of interview which is revealed there. Ordinary intelligent responses are given to the questions asked of the boy. At first he was inclined to deny responsibility, itself a rather significant fact, I would have thought. He agreed that he knew the difference between right and wrong. The attempt at first at evasion seems to demonstrate his wish to avoid the consequences of actions which he knew were wrong. Looking more closely, we see that when asked about the episodes, he was asked, "Do you think that was the right thing to do?". He said clearly, "No.". At another stage in describing what he had done he said, "I walked outside. I just spit and then I just ran." He was bold enough at one stage to go to the woman who worked at the information desk at the Myer Centre. He ran up to her. He was asked, "Did you run up to her and say ‘I’m the one who’s been spitting at you hostesses’ and then run away. Can you tell me anything about that?", and he responded, "I did say it and I just-----". Then he was asked, "Do you think it’s right to spit at people Donald?", and he said, "Not really, cause of this real old man always spits at me when I walk past, just sitting down on the steps and he started spitting at me.". "And did you like it?", "No.". "How did you -- 3 of 4 -- 4 feel when he spat on you?". "I don’t know, it was really yukky." In short, I do not think that we are involved here with either any difficult philosophical question or any difficult legal question. I think it was a relatively simple question of fact which the Magistrate had for decision. He had to decide whether the capacity relevant under section 29 had been demonstrated. He ruled it was and there was ample basis for him to do so. I would dismiss the appeal. McPHERSON JA: I agree that there is no reason for doubting that on the evidence that the magistrate was entitled to conclude that the applicant possessed a sufficient degree of intellectual development or maturity to enable him to realise that he should not spit at people. I would dismiss the appeal. AMBROSE J: Yes, I agree. I have nothing useful to add. THE CHIEF JUSTICE: The appeal is dismissed. - - - - - - -- 4 of 4 --