Crimes Act, s22(1),
No person shall be convicted of an offence by reason of any act done or omitted by him when of the age of 10 but under the age of 14 years, unless he knew either that the act or omission was wrong or that it was contrary to law.
This is the section that my appeal case rests on. To strengthen the appeal, it would help to read the “or” between ‘wrong’ and ‘contrary to law’, conjunctively so that two conditions pertained.
Pioneer Concrete (UK) Ltd v National Employers Mutual General Insurance Ass. .
The clause under consideration:
‘The Insured shall give written notice to the Head Office or Branch Office of the Association of any accident or claim or proceedings immediately the same shall have come to the knowledge of the Insured or his representative.’
The obvious commercial purpose of the clause is to enable the insurer to perform his role as a dominus litis and to investigate accidents and claims at the earliest possible opportunity, and that purpose would clearly be frustrated by the construction contended for. I do not, furthermore, regard the construction, even on the words used, as being a necessary or proper one, since the word ‘or’ is not infrequently used in a conjunctive sense, and that is clearly indicated by the purport of this clause to be the correct sense. It cannot, accordingly, in my judgment, be held in this case that the insured or the plaintiffs on his behalf have satisfied condition (1) by giving notice to the insurers of the accident or a claim.
So the context is the critical factor. But context is largely driven by purpose, particularly where it is a legislative clause under consideration.
There is also a ‘purposive’ argument. The legislature’s purpose was to protect children from culpability under the criminal law. Mens rea [intent] is a critical component of the criminal law for adults and must be proven by the Crown.
The purpose of s22(1) is whether the child actually has the intellectual capacity to form ‘mens rea’ in the first place, that is to say, the purpose of s22(1) is protective of the child. If that argument is accepted, then, it makes an additional argument that the ‘or’ is to be read conjunctively, as this then provides two conditions to fulfil, which increases the burden on the Crown.
Now, if the court accepts these arguments, then I have a reasonable chance of winning the case.