CHILD DEVELOPMENT AND OTHER ASPECTS OF THE LEGAL SYSTEM AND CIVIL LAW
Apart from the criminal law, the
legal system affords protection for children and young people
in a range of areas. These include the age of consent for sexual
intercourse, the age at which civil proceedings can be issued,
the age at which a person can obtain access to alcohol, MA or
R rated films, and gambling activities, the age at which one
can drive motor vehicles, marry, leave home, vote or be employed.
These ages vary for each issue and each jurisdiction.
However, they serve as examples of the legal system recognising
that young people are at different stages of development and
have different levels of understanding. Accordingly the law
affords them some protection.
It is appropriate that the law make special allowances for such age vulnerabilities,
by providing children in various age groups with some protection
from the inflexible operation of the legal system. The principle of doli incapax is not
unique in the legal system in recognising the particular varying
vulnerabilities and developmental characteristics of a defined
age group of young people.
Indeed, in asserting that it is appropriate to review the relevance of
the doli incapax principle, or the appropriateness of
the 14 year upper age limit, in a time of greater sophistication,
universal education and information technology, then equally,
the other age limits of safeguards and limitations placed on
various ages of children and young people should also be reviewed.
The following are all examples of the legal system in New South Wales recognising
that young people are at different stages of development and
have different levels of understanding.
3.1 Civil Proceedings
A person under 18 years of age cannot sue another person without a ‘tutor’
– that is an adult whose name appears on the documents and who
has given guarantees to pay costs if they are ordered against
the child. If a person under 18 is sued, the defence must
name an adult as a tutor. A
document cannot be served on a person under the age of 16 –
for people under the age of 16, it must be served on their parent
or guardian. For people aged 16-18, it can be served on
either the young person, or their parent(s) or guardian.
Contracts and Leases
As a general rule, people under the age of 18 are not bound by contracts,
leases and other transactions unless it is for their benefit
(Minors (Property and Contracts) Act).
3.3 Driving
Young people can apply for a learner’s permit at 16 years, for a motorcycle
permit at 16 years and nine months, and for a provisional licence
at 17 years.
3.4 Alcohol
A young person under the age of 18 is prohibited from possessing or consuming
alcohol in a public place unless they have a reasonable excuse
or are with a responsible adult (Summary Offences Act,
Section 11). It is an offence for a person under 18 to be
on licensed premises in a restricted area, unless they are in
the company of a responsible adult (Liquor Act, Sections
112, 117).
3.5 Medical treatment
At 14 years or over, young people can legally give consent to their own
general medical or dental treatment (Minors (Property and
Contracts) Act, Section 49).
Where the medical treatment is a ‘special treatment’
(such as treatment likely to render the child permanently infertile)
then such treatment of a child under 16 years can only be carried
out with the consent of the Supreme Court (Children (Care
and Protection) Act, Section 20B).
3.6 Voting
At 18 years of age, young people are eligible to vote. At that age, voting is compulsory for Federal
Government elections, State Government elections, and Local
Government elections.
3.7 Marriage
The marriageable age for both women and men is 18 years. Young people between the ages of 16 years and
18 years need the consent of their parents/guardians and the
authorisation of the court to marry (Marriage Act (Cth),
Sections 11, 12 and 13).
3.8 Leaving Home
A person under 18 years of age has no absolute right to leave home, although
young people over the age of 16 would normally not be forced
to return home against their wishes.
3.9 Sexual Relationships
The legal age of consent for a girl or boy to have sexual intercourse with
a person of the opposite sex is 16 years (Section 66C, Crimes
Act). The legal age of consent for a girl or boy
to have sexual intercourse with a member of the same sex is
16 years for girls and 18 years for boys (Section 66C, Crimes
Act).
3.10 Employment
Except where a child is 15 years or older or has an exemption from attending
school from the Minister for Community Services, it is an offence
for a person to employ a child (Children (Care and Protection)
Act, Section 52).
Children under 14 years may not be employed in factories. Children aged between 14-16 can only be employed
in factories in special circumstances (Factories Shops and
Industries Act 1962, Section 49).
3.11 Income Support
Anyone under the age of 15 years does not qualify for the Youth Allowance.
Anyone aged between 15-18 can qualify as long as they
satisfy the various eligibility criteria.
Young people under 15 years can apply for a Special Benefit, but before
they can be considered for this payment, they are assessed under
the Youth Protocols, which consider the needs of young people
under the age of 15 who are homeless or at risk of becoming
homeless.
DOCTRINE OF DOLI INCAPAX
4.1 Definition
Doli Incapax
is a Latin term which literally translates as ‘incapable
of doing wrong’.
Under the common
law in NSW the doli incapax principle gives rise to a
rebuttable presumption that children who have turned 10 and
not yet reached the age of 14 are incapable of knowing that
their criminal conduct is wrong. They are presumed incapable
of committing a crime because they lack mens rea – i.e.
the necessary criminal intention to commit a criminal offence.
This does not mean that children aged between 10 and 14 will automatically
be found not guilty of criminal offences. Doli incapax can be challenged by the
prosecution, if it can establish beyond reasonable doubt that
the child knew that when he/she committed the act, that he/she
knew that it was a wrong act of some seriousness, and not just
mere naughtiness or mischief. To rebut doli incapax, the prosecution
must prove that the child did the act charged, intended to do
the act and that when doing that act, the child knew that it
was a wrong act of some seriousness, as distinct from childish
mischief .
The most recent
and clearest articulation of the principle of doli incapax
is that of Lord Lowry in the UK House of Lords in the matter
of C (A Minor) v Director of Public Prosecutions-
I
turn, therefore to consider what must be proved in order to
rebut the presumption and by what evidence … A long and uncontradicted
line of authority makes two presumptions clear.
The first is that the prosecution must prove that the
child defendant did the act charged and that when doing the
act he knew it was wrong as distinct from an act of mere naughtiness
or childish mischief. The
criminal standard of proof applies.
What is required has been variously expressed as ‘strong
and clear beyond all doubt or contradiction, or ... ‘very clear
and complete evidence’… ‘Guilty
knowledge must be proved and the evidence to that effect must
be clear and beyond all possibility of doubt.’
No doubt the emphatic tone of some of the directions
was due to the court’s anxiety to prevent merely naughty children
from being convicted of crimes and in a sterner age to protect
them from the draconian consequences of conviction. The second clearly established proposition is that evidence to prove
the defendant’s guilty knowledge, as defined above, must not
be the mere proof of the doing of the act charged, however horrifying
or obviously wrong that act may be…. a guilty knowledge that
he was doing wrong, must be proved by the evidence, and cannot
be presumed from the mere commission of the act.
In his judgement,
Lord Lowry provides a detailed review of previous English common
law authorities for the principle, a discussion of the principle
in Government Reports and White papers, and various Commonwealth
case law authorities.
4.2 Developments
in Australian Law
Several States have
now incorporated the doctrine of doli incapax into statute.
A child in NSW, Victoria, and South Australia who is over the
age of ten and not yet turned 14 still needs to rely on the
common law presumption, to require the prosecution to rebut
the presumption that he or she lacked the capacity to form the
necessary criminal intent.
The Supreme Courts
in those States have held that doli incapax may legitimately
be argued.
4.3 Common Law
and doli incapax - NSW
In New South Wales,
Lord Lowry’s judgement was accepted as a clear statement of
the application of the law in Australia in relation to the doli
incapax principle, in the Court of Criminal Appeal in the
matter of R – v – CRH (Case No. 60390 of 1996, unreported
18 December 1996). This
was referred to by Sully, J. in the NSW Court of Criminal Appeal
matter Regina v Meola. Sully, J. referred to the principles encapsulated
in the expression doli incapax, and the way in which
it is to be applied in a particular trial context.
The relevant point
to note was that where doli incapax arises it is for
the Crown to establish to the criminal standard (i.e. beyond
reasonable doubt) that the alleged offender had the capacity
that the law requires that he have before he is vulnerable to
conviction.
4.4 Statutory
incorporation of doli incapax in Australia
In Queensland, Section
29(2) of the Criminal Code Act 1899 states:
A
person under the age of 15 years is not criminally responsible
for the act or omission, unless it is proved that at the time
of doing the act or making the omission the person had the capacity
to know that the person ought not do that act or make that omission.
In Tasmania, Section
18(2) of the Criminal Code Act 1924 states:
No
act or omission done or made by a person under 14 years of age
is an offence unless it be proved that he had sufficient capacity
to know that the act or omission was one which he ought not
to do or make.
In the Northern
Territory, Section 38(2) of the Criminal Code Act 1983 states:
A person under the age of 14 years
is excused from criminal responsibility under an act, omission
or event unless it is proved that at the time of doing the act,
making the omission or causing the event he had capacity to
know that he ought not to do the act, make the omission or cause
the event.
In Western Australia,
Section 29 of the Criminal Code Act 1913 states:
A person under the age of 10 is
not criminally responsible for an act or omission. A person
under the age of 14 is not criminally responsible for an act
or omission, unless it is proved that at the time of doing the
act or making the omission he had capacity to know that he ought
not do the act or make the omission
