The mental element of the offence III

Doli incapax in New South Wales

 

New South Wales Commission for Children and Young People

 

March 2001 Issue

 

Doli Incapax debate resolved

 

A review of the Law on the Age of Criminal Responsibility of Children has been resolved following a recommendation by the Attorney-General’s Department Criminal Law Division that there be no change in the law.

In July 1999 the NSW Attorney-General’s Department outlined a series of options for reform of doli incapax which indicates that where a person under the age of 14 is charged with a criminal offence the prosecution has to prove that the young defendant knew that his or her conduct was seriously wrong and not simply naughty or mischievous. The Commission, with assistance from National Children’s and Youth Law Centre, made a detailed submission pressing for the rule to be retained in its present form. The submission argued that doli incapax is an important way of protecting the rights of vulnerable children in the legal system.

The Commission argued that there was no scientific or medical evidence to suggest that children and young people today are more able to make judgements about right and wrong than their predecessors were in the centuries when doli incapax developed.

The submission also cautioned that we should not confuse an increase in factual knowledge and children’s greater access to sophisticated technology with a corresponding increase in the ability to make moral judgements.

The Commission will continue to resist any weakening of the doli incapax presumption and advocate for its inclusion into statutory law, as has already happened in Queensland, Tasmania, Western Australia and the Northern Territory.

Follow this link to read the Commission’s submission to the Review of the Law on the Age of Criminal Responsibility of Children. [See below.]

 

Submission from the Commission for Children and Young People

to the

Review of the Law on the Age of Criminal Responsibility of Children

 

EXECUTIVE SUMMARY

This submission discusses the status of children in the criminal justice system in NSW with regard to the statutory age of criminal responsibility and the effect any attempt to change the rebuttable presumption of doli incapax may have on ten to thirteen year old children if the age where a child is presumed to possess full adult criminal capacity is lowered from 14.

The Commission for Children and Young People strongly supports the retention of the doli incapax presumption in NSW for the following reasons:

There is no medical or scientific evidence to suggest that children and young people today are more able to make judgments about right and wrong than their predecessors were in the centuries when doli incapax developed.

The doli incapax presumption requires no more than that the prosecution prove that the child knew that the act of which they were accused was serious and wrong. This is requirement is consistent with current community expectations about the protection which should be afforded to children.

Doli incapax recognises that the capacities of children develop over time and that all children do not develop at the same rate. It provides an additional legal protection for children who have a disability, are immature or are otherwise vulnerable.

The doli incapax principle arises in no more than 10% of NSW Children’s Court cases involving criminal charges against 10 to 14 year olds – which means two cases per week. There is no evidence to suggest that the principle is being inappropriately applied in the 10-14 age group, or that there is a noticeable number of miscarriages of justice as a result of the operation of the principle.

The Commission recommends that the protection of vulnerable children is best served by enacting doli incapax in statute in NSW, as has already occurred in four Australian jurisdictions. Its maintenance as a common law presumption continues the current discriminatory practice where children in rural and regional parts of the state have less access to justice because solicitors in local courts are unfamiliar with the presumption.

CHILD DEVELOPMENT AND THE CRIMINAL JUSTICE SYSTEM

2.1 Age and Criminal Responsibility

The laws applicable to children in the earliest stages of Australia’s colonial development were the laws of England. Children who committed offences were tried in the same courts as adults and were generally subject to the same penalties.  There were no special measures for dealing with them.  The most important concessions which the English law made to children were expressed in two common law presumptions.  There was the irrebuttable presumption that a child under the age of seven was incapable of committing a crime and a rebuttable presumption to the same effect regarding children between the ages of seven and fourteen.  During the nineteenth century it was accepted that the presumption as to capacity applied regardless of the type of offence charged. [91]

2.2 Statutory recognition of age and criminal responsibility

All Australian states gradually gave statutory form to the irrebuttable presumption regarding children under seven.  Most states raised the age of criminal responsibility to 10.  Children below the age of 10 are not deemed criminally responsible in the NSW Criminal Justice System, under Federal Criminal Law, or in any other state jurisdictions except the ACT and Tasmania where the threshold is seven and eight respectively [92]

The Human Rights and Equal Opportunity Commission and the Australian Law Reform Commission’s Report: Seen and Heard: priority for children in the legal process recommended that the minimum age of criminal responsibility in all jurisdictions should be 10 years, and that the Tasmanian and ACT Governments should enact legislation to this effect. [93]

None of the ages presently accepted in Australia can be said to reflect universally observable facts of child development.  The development of law in regard to the criminal capacity of children has more its foundation in a mix of cultural mores and moral values.  Laws were enacted to protect ‘the child’ if they were under a certain age and therefore seen not to have the capacity to commit a criminal act. If they were over that age they were expected to bear the full consequences of their actions.

The concept of an intermediate stage between childhood and adulthood is a relatively recent one.  Because each individual develops at a different rate, there is no guarantee that ageing automatically brings with it maturity and the required capacity.

The age of criminal responsibility can therefore be seen as a device which gives effect to the opinion that the very young should be shielded from the rigours of the criminal law. The concept of an age of criminal responsibility reflects the notion that young children are slow to develop social capacity, and an acknowledgment that the criminal justice system is an inappropriate place to deal with the misbehaviours of a very young person.

2.3 International examples regarding the age of criminal responsibility

There are wide differences internationally in relation to when criminal capacity is deemed to commence. Within Europe for example, the lowest age is Ireland (7 years) while in Sweden it is 15 years.  In USA, different states have adopted different ages, with the lowest being 10 years, and the highest being 18 years. [94]

The United Nations Committee on the Rights of the Child has expressed concern about ‘the low age of criminal responsibility in the UK.’ The Committee has also asked if Australian jurisdictions envisage raising the age of criminal responsibility. [95]

In Africa the trend has been towards raising the age of criminal capacity. In the 1996 Uganda Children’s Statute, the age of criminal capacity was fixed at 12 years. In Ghana there was a recommendation that the minimum age of criminal responsibility be fourteen years [96] .

The Convention on the Rights of the Child places a duty on state parties to establish a minimum age below which children shall be presumed not to have the capacity to infringe penal law. The Beijing Rules (Rule 4) recommend that when states establish such an age of criminal responsibility ‘the beginning of that age shall not be fixed too low an age level bearing in mind the facts of emotional and intellectual maturity.’ [97]

Appendix 1 sets out the age of criminal responsibility in other countries.

2.4 Rebuttable presumption for children over the age of criminal responsibility – ‘doli incapax’

In addition to the statutory minimum age of criminal responsibility the rebuttable presumption of doli incapax has been incorporated into statutory law in the Criminal Codes of Queensland, Tasmania, Northern Territory and Western Australia [98] .

The presumption applies to children in criminal proceedings of ten until they turn fourteen, (fifteen in Queensland).  Children in this age range are presumed incapable of committing a crime because they lack the necessary criminal intent. The presumption can be rebutted if the prosecution can show beyond a reasonable doubt, that the child concerned was aware that their actions were ‘seriously wrong’ (as opposed to merely naughty or mischievous) [99] .

After the age of 14 (or 15 in Queensland), the law presumes that a child assumes full criminal responsibility, but is still able to be tried in the Children’s Court up to the age of 18 in NSW.  At 18 the child assumes full adult legal responsibilities in the criminal justice system in NSW, South Australia, Western Australia, Tasmania and the A.C.T. In Northern Territory, Queensland, and Victoria the age is 17. [100]

Under Article 1 of the United Nations Convention on the Rights of the Child, a child means any human being under the age of eighteen years, unless under the applicable domestic law, majority is attained earlier.  Accordingly, at international law 18 years has been recognised as the appropriate age for separation of young people from the adult criminal justice system.

2.5 Sentencing Provisions recognising age vulnerability

There is also varying recognition in jurisdictions as to the continuing vulnerability and developmental factors of young people in the criminal justice system, even after they have turned 18 (or in the case of Victoria, NT, Queensland and Tasmania, 17), in relation to sentencing, detention and imprisonment.

In NSW under the Children’s (Criminal Proceedings) Act 1987, the NSW Children’s Court, is able to issue a control order for a young person up to the age of 18, for up to a period of two years, to be served in a detention centre.  Cumulative orders may be made up to a maximum of three years [101] .  Effectively, this means that the NSW Children’s Court is able to issue a sentence for detention in a Youth Training Centre which could see a young person under the age of 18 sentenced to a period of detention in a Youth Training Centre up to the age of 21.  This also recognises that even after the age of 18, young people already serving a period of detention should be protected from the rigours of the adult prison system.

Such a philosophy is better exemplified in Victoria, in what has become known as the Dual Track System, where under Section 32 of the Sentencing Act 1991 (Vic), an adult Magistrate’s Court may impose an order for a young person to serve a period of detention in a Youth Training Centre.  The young person must be over the age of 17, but under 21 at the day of the Court hearing, and the maximum period for such a term of detention is 24 months.

2.6 Why Change?

The staggering of assumption of full adult criminal responsibility in the Juvenile Justice System is an attempt to recognise that up to the age of 18, children and young people are at different stages of development and understanding.  Indeed, this acknowledgement extends beyond the age of 18, in relation to issues of detention and imprisonment.

Australian law with regard to age and criminal responsibility has always taken some account of the different stages of development of children and by so doing has acknowledged that within the developmental process some children fall through the cracks. To take away the rather limited protection currently offered by the principle of doli incapax without any consideration of the harm that may result is unwarranted.