The mental element of
the offence III
THE SCIENTIFIC
AND MEDICAL EVIDENCE
The Commission
strongly supports the principle that decisions about legislation,
policy and practice should be based on sound evidence. To
this end, the Commission asked the Psychology Department
at Sydney University to undertake a search of the international
scientific, medical and sociological literature to determine
whether there was any evidence to suggest that the ability
of children to make moral judgments had increased to a level
which would justify the abolition of doli incapax.
The results of that search form this chapter of the submission.
An annotated bibliography of the evidence is at Appendix 2.
5.1
What constitutes scientific or medical evidence?
Much research and discussion has taken place over the past century into
children’s understanding of right and wrong. These have
included theological, philosophical, medical, legal and
social science based reports. The main databases examined
for the present purpose were education, law, medicine, psychology
and sociology. Generally, the same references to this subject
were found on each database.
However, the main differences were in the theoretical
discussions about the nature of right and wrong. These discussions
(whilst invaluable in formulating new research and discussing
the previous research) were considered to be beyond the
scope of the present review, especially as this discussion
was largely opinion-based. That is, it did not involve systematic
observations or interactions with children. Therefore, for
the purposes of this chapter of the submission, only empirical
studies (i.e., those involving systematic observations or
interactions with children) will be used.
5.2
What constitutes ‘distinguishing right from wrong’?
What constitutes right from wrong will depend on the perspective one takes.
For example, a judge in Tehran, a factor worker in Sydney
and a Buddhist priest in Tokyo may all have very different
concepts of right and wrong. For the present purposes, right
from wrong will be taken as based on western philosophical
ideas of morality. More specifically, if a definition of
criminal responsibility is used, then a clear set of criteria
may be outlined. Normally, three criteria must be met if
the person is to be held criminally responsible for a crime
that he committed (Thompson & Watson, 1985). First,
when that person was committing the act, he knew the act
was punishable or wrong (the mens rea). Second, that
person was aware of what he was doing and did so voluntarily.
Third, that person was aware of both the immediate and long-term
consequences of his behaviour.
Each aspect will be examined in turn.
5.3 When do children know that an act is punishable or wrong?
This question has been addressed in many ways over the past century. The
studies basically fall into one of three main areas: emotions,
behaviours or cognitions. This Socratarian split was due
to three different schools of thought that were active at
the beginning of this century. First was the Freudian or
psychodynamic movement (e.g., Langford, 1995). Put simply,
right and wrong were seen as best measured by the emotions
of guilt and anxiety. Freud expected that it was the emotions
of anxiety and guilt that allowed us to recognize good from
bad and right from wrong. This was related to Freud’s interest
in the conscious and unconscious (especially what he termed
the control of the ‘superego’). He reasoned that we may
not ‘know’ right or wrong, as these ideas may be unconscious,
therefore our emotions may be the best guide to how our
unconscious understands right and wrong. For example, by
feeling guilt, a person recognizes that he has done something
he (that is, his superego) considers is wrong. However,
as psychodynamic models were not amenable to empirical research,
little research has been conducted on these ideas (see Langford,
1995 for a discussion on the research that has been conducted
on psychodynamic models).
The second aspect that was developed came from the behavioural movement.
This was primarily concerned with moral behaviour.
Behaviour was seen as something that was learnt following
various principles of reinforcement, punishment and modeling.
The Character Education Inquiry (Hartshorne & May, 1928,
1929, 1930) was the first major study conducted that examined
moral behaviour. They examined ‘cooperative and charitable
character’, ‘self-control’, and ‘deceit’ in over 2,000 children.
They put the children into a series of natural or contrived
situations and noted how they behaved. For example, children
were sent to a shop where the shopkeeper had been instructed
to give the children too much change. If the children kept
the change, this was used as a measure of stealing. The
research showed that even their youngest children (nine-year
olds) were able to demonstrate deceit. However, the main
finding of this study was that none of their tests (and
there was over a hundred of them) appeared to be correlated.
That is, rather than there being an underlying ‘good character’,
there appeared to be specific moral aspects that were not
related.
The work of Hartshorne & May (1930) has been heavily criticized for
the poor definitions of the various concepts they used.
That is, they emphasized the specific elements in moral
behaviour but then mistook these parts as the whole. For
example, using the acceptance of too much change as a measure
of stealing, and then equating this with a concept of overall
honesty. However, Eysenck (1953) concluded that, ‘although
Hartshorne and May have failed to show that human conduct
is completely specific, they have shown conclusively that
it is far less general than we tend to imagine, and far
more strongly determined by the specific situation in which
it occurs.’ As a result of Hartshorne & May’s conclusion
that there may be no generic moral character, little research
was conducted in America for a number of years following
this publication. When research did begin again, the behavioural
model had lost favour with researchers and so Hartshorne
& May remains one of the largest studies ever conducted
on children’s moral behaviour.
The third, and perhaps most influential aspect, was the cognitive movement.
The primary focus of the cognitive movement was on children’s
attitudes and judgements about right and wrong. Macaulay
& Watkins (1925) were the first to examine what a child
may understand to be wrong. They asked over 3,000 school
children in England what was ‘the most wicked things anyone
could do’. Although this was a very simplistic attempt to
examine how children understand the nature of wrong (or
‘wickedness’), the children reported four main groups of
offences: crimes against person and property, crimes against
religion, crimes against parents or others and school offences.
The general moral outlook of these seven to eighteen year-old
children did not appear to differ from adults. However,
Macaulay & Watkins did find a developmental pattern
in children’s responses. Up to the age of nine only minor
offences against the child were mentioned. From nine to
adolescence, the child reported that what is wrong is what
she has been told is wrong. During adolescence, there was
a rebellion against authority, although this diminished
as the adolescent aged, until finally a more self-controlled
view of morality emerged (that is, a more internalized set
of moral codes appeared to be guiding the individual).
The next series of studies exploring moral attitudes were to spark most
of the subsequent empirical research in children’s understanding
of right and wrong. This series of studies was conducted
by Jean Piaget. Piaget (1932) was interested in the moral
judgement of the child, at a time when he was also exploring
his theories on a child’s overall mental development. He
first examined how Swiss children understood rules (using
the game of marbles) and then examined how children made
moral judgements. For example, he read children two stories:
Story A: ‘A little
boy [or a little girl] goes for a walk in the street and
meets a big dog who frightens him very much. So then he
goes home and tells his mother he has seen a dog that was
as big as a cow.’
Story B: ‘A child comes
home from school and tells his mother that the teacher had
given him good marks, but it was not rue; the teacher had
given him no marks at all, either good or bad. Then his
mother was very pleased and rewarded him.’ (Piaget, 1932
/ 1965, p. 142)
After hearing the stories, the children were asked which child was ‘the
naughtiest.’ Based on the children’s responses, Piaget concluded
that two distinct styles of reasoning were used by children,
with the transition from one to another taking place at
around eight years of age. Children under the age of eight
appeared to be what Piaget termed ‘moral realists’. That
is, the children focused their judgements on the obvious
and objective aspects of the story. For example, the following
is the response given by seven-year-old BURD to the aforementioned
stories. ‘The naughtiest is the one who saw a dog as big
as a cow. It is naughtier because his mother knew [that
it was false or impossible], whereas the other one, the
mother didn’t know. If you say something that mother doesn’t
know, it is less naughty because his mother might believe
you. If the mother knows it isn’t true then it is a bigger
lie’ (Piaget, 1932 / 1965 p 145).
Piaget suggested that children over the age of eight were more likely to
demonstrate ‘moral subjectivity’, where beliefs and intentions
to deceive were the basis for the older children’s judgements.
For example, ARL, aged ten responded, ‘The naughtiest is
the one who deceived his mother by saying that the teacher
was pleased.’ ‘Why is he the naughtiest?’ ‘Because the mother
knows quite well that there aren’t any dogs as big as cows.
But she believed the child who said that teacher was pleased.’
(Piaget, 1932/1965 p 149). Further, as the child grew older,
the child appeared to move from a reliance on the authority
of another to establish what is right and wrong, to more
internalisation (i.e., a child’s judgement appeared independent
of external definitions of right and wrong). Whilst these
categories appeared to be stages, Piaget stressed that young
children did report intentions and older children did report
considering the consequences, but there was a tendency for
one style to predominate.
Many aspects of Piaget’s work have been extensively criticized (e.g., see
Bull, 1969) but his work created a legacy of similar studies
examining and refining how children judge right and wrong
(e.g., see Havinghust & Taba, 1949). For example, MacRae
(1954) found that Piaget’s category of ‘moral realism’ could
more usefully be seen as a combination of four relatively
independent factors. These were; sensitivity to intentions,
concepts of punishment, ability to take another’s perspective
and deviating from the authority norms. Thus, by the 1960’s,
researchers were moving beyond mere judgements of right
and wrong. In particular,
Kohlberg wanted to examine how children reason about what
is right and wrong.
Kohlberg conducted a large longitudinal study that followed 84 boys from
three age groups (10, 13 and 16 years) for 20 years. Based
on this data, Kohlberg developed six stages of moral reasoning
(see Kohlberg, 1981 for a more detailed account of his stage
theory). The first stage was focused on punishment and obedience.
That is, what is right is seen as literal obedience to rules
and authority. Approximately 27% of the ten-year-olds were
reasoning at stage one, compared to 60% who were reasoning
at stage two. The second stage focused on individualism
and exchange. That is, what is right is seen as what best
serves one’s own interest and what’s fair is an equal exchange
or equal deal. The third stage focused on mutual interpersonal
expectations and conformity. That is, what is right is being
a ‘good’ person, who can be trusted, is loyal and respectful.
Approximately 60% of sixteen-year-olds reasoned at this
stage. The fourth stage focused on the social system and
conscience. That is, what is right is doing one’s duty in
society and following the laws of the land. Approximately
49% of 24 year-olds reasoned at this stage, climbing to
62% of 36 year-olds. The fifth stage focused on social contract
and individual rights. That is, what is right is upholding
basic rights, values and legal contracts, even if they conflict
with rules or laws. Approximately 7% of 25 to 36 year-olds
reasoned at this stage. The sixth and final stage focused
on universal ethical principles. That is, what is right
is based on universal principles that all humanity should
ultimately follow. No research participant ever appeared
to reason at this stage. Thus, serious questions about its
existence have been made. This stage is now no longer used
as part of Kohlberg’s model (e.g., Gibbs, Basinger &
Fuller, 1992).
Nearly all present-day research into children’s understanding of right
and wrong will either refine (e.g., Gibbs et al, 1992; Puka,
1994) or refute (e.g., Turiel, 1997) Kohlberg’s stage theory.
All such studies discuss different methods of examining
how children understand right from wrong. A final point
to note, is that few studies find a clear relationship between
moral judgement (or reasoning) and moral behaviour (see
Saltzstein, 1994, for a discussion on possible reasons for
this).
5.4
When are children aware of what they are doing?
Children’s awareness of what they are doing can best be assessed using
children’s understanding of deception. In order for a young
child to deceive, she must understand that she knows something
others do not. Further, she must mask her true feelings,
in order to convincingly deceive. Both of these aspects
require a child to have a clear idea of what she is doing.
Experimental studies have strongly debated the age at which
a child can clearly demonstrate deception (e.g., see Wimmer
and Perner, 1983; Chandler, Fritz and Hala, 1989). However,
Newton (1994, as cited in Dunn, 1999) conducted a series
of studies examining young children’s use of deception in
the family home. These studies found that three year olds
could deceive equally as well as four year olds but did
not do so as frequently. Further, deception occurred most
commonly when the child was in conflict with parental authority,
but could also occur to save face when being punished. In
conclusion, it appears that a child’s ability to deceive
is specific to his social situation, as experimental studies
of deception (e.g., Chandler et al., 1989) find that
children have less developed deception skills than naturalistic
studies (e.g., Dunn, 1999).
5.5
When do children understand the short- and long-term consequences
of their behaviour?
The previous section briefly outlined children’s use of deception. This
is also a good example of children’s understanding of short-term
consequences. A child (or adult, for that matter) is unlikely
to use deceptive techniques unless she understands that
as a consequence, her deception will be believed. Therefore,
short-term consequences are usually understood by the age
of three for events that children are familiar with (e.g.,
Inhelder & Piaget, 1958; Dunn, 1999).
However, while young children are apt at noticing causation (that is, that
if they do one thing, something happens) and thus can rapidly
learn about short-term consequences, long-term consequences
are more difficult to understand. Piaget (1932) noted that
children between the ages of 8 and 15 were able to infer
what the long-term consequences of lying may be. It is now
generally considered that, depending on the consequence
in question, children usually reach adolescence before they
have a clear appreciation of consequences (Case, 1992; Inhelder
& Piaget, 1958). For example, a ten-year-old may ‘know’
that if you kill someone you go to jail. The child may not
have thought beyond this obvious consequence to the impact
that would have on the rest of her life, on her emotions,
on her family reactions or the family of the person killed.
5.6
What constitutes ‘more able’?
In order to show that a child today is more able to understand right from
wrong than a child twenty years ago, one must repeat the
exact study that was conducted twenty years earlier. To
do this, one must use the same age children from the same
cultural group (e.g., the same city), use the same task
and use the same method for coding the answers. However,
as outlined above, much of the research into moral development
has come from different perspectives and hence different
methodologies have been used. Further, those researchers
who shared the same perspectives developed a range of techniques
that evolved with each subsequent study. For example, Piaget
used stories, whereas, years later, Kohlberg used different
stories with a more structured interview and an elaborate
method of coding the answers of the children. This makes
direct comparison useless, for it is well known from even
the earliest research that children will perform differently
on different tasks (see Hartshorne & May, 1930).
Thus, to detect a change in children’s understanding of right and wrong,
one must use only those studies that have sort to directly
repeat the original study. This constraint immediately narrows
down the field of research to predominately the theories
and methodologies of Piaget and Kohlberg. However, Kohlberg’s
longitudinal studies had not been published in full until
1983. Further, aspects of his theory have been criticized
and extensively modified, such that, replications of Kohlberg’s
work today do not use his original coding categories and
therefore, direct comparisons cannot be made.
As Piaget’s work (began in 1927, published in 1932) was not published in
English until 1965, most of the Piagetian replication studies
were conducted some 30 – 40 years after the initial study.
It is to these studies that we now turn.
5.7
What empirical studies have been replicated on children’s
ability to distinguish right from wrong?
Most of the research conducted into Piaget’s model was done to establish
whether his categories were accurate (see Lickona, 1976,
for a review). There is no known study to date that has
explicitly examined possible changes in children’s reasoning
about right and wrong from one generation to the next. Hence
the focus of the replication studies dramatically differ
from that of the present paper. It is therefore not surprising
that the results are mixed. Some studies (e.g., Loughran,
1967) show children’s understanding developing at a slower
rate than Piaget suggested nearly forty years earlier. For
example, Loughran concluded that ‘adolescents arrive at
Piaget’s level of mature autonomous judgement between 12
and 17 years, not between 11 and 12 as Piaget says’ (Loughran,
1967, p 89).
Other replication studies of Piaget’s work have found that children were
using intentional aspects in their judgements at a younger
age than Piaget had suggested. For example, Boehm (1962)
found that children were rejecting ‘moral realism’ around
the age of seven, not eight years of age as Piaget had suggested.
This year difference in moral judgements was also consistently
found by others (e.g., MacRae, 1954; Rotenberg, 1980). Two
concerns regarding these results need to be highlighted.
First, these studies were conducted on American children
and used different (although similar) stories and questions
to Piaget. Second,
and more importantly, although they consistently found a
year ‘improvement’ in young children’s reasoning, they did
so across a 26 year time span. That is, children’s improvement
does not appear to continue, but rather, a closer inspection
of the information supplied by children indicates that Piaget
may have been a year out in his estimate.
These results are suggestive of a greater complexity to children’s moral
reasoning than Piaget first suggested (this resulted in
Piaget’s model being abandoned in favour of the more complex
Kohlbergian model). Indeed, recent research (e.g., Emler,1998)
demonstrates that young children’s understanding of right
from wrong may be more complex than is currently thought
and social situations may be strong predictors of that complexity
(Emler, 1998). This may appear to imply a generational improvement
in children’s understanding of right and wrong. However,
the cause is more likely to be the quality of the research.
As better research techniques are developed, more can be
understood of the intricacies and complexities of the way
children understand right from wrong. For example, in 1927,
Piaget presented children with two stories and asked about
five questions about the stories. Kohlberg, in 1958 (when
he began his doctoral dissertation), used moral dilemmas
and needed the children to complete a complex structured
interview. The amount of information was considerably larger
in the latter’s research, which would increase the degree
of complexity that any one child could demonstrate.
However, a final point should be noted. Inhelder (Piaget’s research colleague)
did suggest that Piaget’s staff appeared to find that Swiss
children were developing more rapidly in moral reasoning
(see Keasey, 1977). As tantalizing as this comment may be,
there is no empirical support for this finding. The best
way to establish an improvement over time in children’s
understanding of right and wrong would be to use Swiss children.
This is because the original Piagetian studies were done
with this population and therefore cultural factors would
be properly controlled for. It is ironic that it was a member
of Piaget’s staff that suggested this may be occurring as
it was his staff who were in the best position to test this
idea by replicating his research. Yet, they did not.
5.8
What conclusions can be made?
First, there are no known empirical studies that directly examine if children
today have a better understanding of right and wrong than
children of previous generations. Second, it is now known
that children’s understanding of right and wrong is more
complex than previously thought. It may be that children’s
thinking has developed greater complexity, but it is more
likely that our understanding of children has merely improved.
Third, and finally, more research is needed to establish
exactly how children’s understanding of right and wrong
(emotional, behavioural and cognitive) develops.
PROPOSALS
FOR LAW REFORM
The Criminal Law Division
of the Attorney General’s Department has invited comment
on the specific issues raised in its Discussion Paper.
Issue
1: Is there any scientific or medical evidence to support
the proposition that today’s children are more able to distinguish
right from wrong than their earlier counterparts?
As is clearly demonstrated
above, there is no evidence to support the view that children
are more able to make moral judgments now than they were
in the past. This submission has already addressed the assertions
that doli incapax is no longer appropriate for modern
society, where children have greater access to education
and information technology. Better education does not guarantee a greater
ability in children to distinguish right from wrong. The
current operation of the doli incapax presumption
results in a system which allocates a flexible four year
period during which moral culpability can be assessed. This is preferable to a system which assumes
that by the age of twelve all children have reached the
same level of moral culpability as an adult.
Issue 2:
Should the common law on doli incapax be retained
and enacted in the Children (Criminal Responsibility)
Act 1987?
The Commission
for Children and Young People strongly supports the retention
of the doli incapax for 10-14 year olds.
The principle provides the necessary leeway for a
class of young people whose degree of maturity may vary
not only among children of different ages, but also among
children of the same age.
The rebuttable presumption has helped to achieve
a fair and objective assessment which ensures that only
those who have been proved to possess sufficient maturity
and capacity to appreciate that their criminal acts amount
to serious wrongs would be held fully responsible and would
face criminal sanction.
Removal of the
rebuttable presumption of doli incapax would prejudice
less developed and immature children.
Preservation of the principle helps to prevent such
unfairness. Removal of the presumption completely, or for
12-14 year olds, will mean that children in the age group
for whom doli incapax no longer applies, will be
treated in the same way as adults, and exposed to the full
trauma of the prosecution process. This offends the basic tenet that the law should
afford protection to the young.
‘Whilst it is
common sense to presume that most children know the difference
between right and wrong in a general sense, we do not believe
that this should automatically lead to the conclusion that
they can be expected to assume the same degree of responsibility
for their actions as an adult.’
However, one
should question what is the most effective way of ensuring
that the principle is used consistently and to make sure
that it performs the function intended, that of protecting
vulnerable children in the criminal court process. Accordingly,
the Commission strongly supports Recommendation 195 of the
Human Rights and Equal Opportunity Commission/Australian
Law Reform Commission Report, ‘Seen and Heard – Priority
for Children in the Legal Process’: Recommendation 195.
The principle of doli incapax should be established
by legislation in all jurisdictions to apply to children
under 14.
Currently, in
all jurisdictions other than New South Wales, Victoria South
Australia and the ACT, doli incapax for 10-14 year
olds is enshrined in legislation. Similar legislation in these remaining states
would ensure a much more consistent application of the doctrine
across all jurisdictions.
Accordingly,
such legislation in NSW would bring the State into line
with Queensland, Western Australia, Northern Territory and
Tasmania, as well as New Zealand.
As stated above,
the principle rarely arises in proceedings involving 10-14
year olds in regions outside of Sydney, Newcastle and Wollongong
because these matters outside of these three cities are
heard in local courts, and are run by solicitors who usually
have little experience of proceedings in specialist Children’s
Courts. By giving statutory recognition to the principle,
there would be greater awareness of the principle for practitioners,
and lessen the likelihood of child defendants under 14 years
in rural and regional areas having a lesser standard of
justice than their urban counterparts.
Issue
3: Should the rebuttable presumption of doli incapax be
altered to: (a) Shift the burden of proof to the accused?
This proposal
involves a reversal of the onus of proof to require the
child defendant to prove, on the balance of probabilities
that he or she did not know that the act done was wrong.
This proposal would make it easier for the prosecution to
prove its case. It is reasonable to assume that a greater
number of convictions against child defendants would ensue.
This proposal
is rejected as it reverses the traditional obligation on
the prosecution to prove all essential elements of the offence
beyond reasonable doubt, in criminal matters. This is a fundamental tenet of our criminal
justice system. In
the case of 10-14 year olds, this means that the prosecution
must establish an additional element, namely that the child
was aware that their conduct was ‘seriously wrong’.
Significantly,
it will require the defence to produce evidence to indicate
that the child was not aware that their conduct was seriously
wrong. This will
involve the defence calling complex evidence in relation
to the child’s development, upbringing, education and maturity. This may involve calling specialist expert witnesses in the area
of child development, as to issues of the child’s knowledge. Accordingly, the financial cost to the defence
of producing such evidence will be significant. In addition, a greater level of complexity
and delay will be introduced into the hearing process.
Significantly, placing the
burden on the defence also reverses the traditional privilege
against self-incrimination for accused persons.
Where a defendant suffers from an intellectual disability
or a psychiatric illness, producing evidence of such disability
or illness may serve to prejudice that defendant before
a jury or a magistrate.
This is also applicable for 10-14 year olds who suffer
from intellectual disability or a psychiatric illness, which
may affect their criminal capacity. Unfortunately, community understanding, awareness and tolerance
of people with such disabilities are still somewhat lacking.
When the onus
of proof shifts to the accused, it is then up to the accused
person to establish that s/he was doli incapax.
The danger of this alteration in the onus of proof
for 10-14 year olds who have an intellectual disability
or a psychiatric illness lies in part in their experience
of their disability, and in part in the adversarial court
process. Cross examination of defendants who have an
intellectual disability can be problematic because of the
person’s inattention to detail, memory deficits, poor concentration,
or a general willingness to please. Yet cross examination
is the main adversarial tool in the criminal justice process.
It is often because of a person’s disability that
the defence relies on the prosecution to prove their case
against the accused, as the defence is less inclined to
call a person with an intellectual disability or psychiatric
illness to give evidence.
Should
the rebuttable presumption of doli incapax be altered to:
(b) Lower the standard of proof to the balance of probabilities?
This proposal
would make it easier for the prosecution to rebut the doli
incapax presumption, by allowing them to prove that
the defendant knew that what s/he was doing was seriously
wrong, to the civil standard of proof, namely the balance
of probabilities. Currently,
the prosecution is required to rebut doli incapax
to the criminal standard of proof, which is ‘beyond reasonable
doubt’. Presumably,
this would result in more convictions against child defendants
where doli incapax is an issue.
This proposal
is rejected as it is irregular and confusing that the prosecution
is required to prove all other elements of the offence to
a criminal standard of proof (i.e. beyond reasonable doubt)
but to rebut the doli incapax presumption, it need
only prove requisite knowledge to a civil standard (i.e.
balance of probabilities). As stated, for 10-14 year olds, the prosecution
must rebut doli incapax to establish adequate criminal
mental intent (i.e.
mens rea). For anyone over the age of 14, the prosecution
must establish criminal mental intent to the criminal standard
of proof (i.e. beyond reasonable doubt).
It is therefore anomalous and prejudicial to 10-14
year olds to create a situation where to establish criminal
mental intent for 10-14 year olds, it need prove an essential
element of that criminal mental intent (namely rebuttal
of doli incapax) to a lesser standard, namely the
balance of probabilities.
As was pointed
out above, the currently required evidential burden on the
prosecution to rebut the presumption is not onerous, and
is often successfully rebutted by production of evidence
such as the child’s age, education, previous criminal history,
previous contact and conversations with police, and the
nature and circumstances surrounding the commission of the
offence.
Should
the rebuttable presumption of doli incapax be altered to:
(c) Place the evidential burden on the accused?
This proposal
would place the evidential burden on the accused to raise
the issue of doli incapax, whereupon the prosecution
would be required to rebut the presumption in the usual
way. Currently, the prosecution is required to rebut the
presumption of doli incapax in every case involving
a child aged 10-14.
This proposal
is rejected as it does not deal with the situation canvassed
earlier, where defendants in rural and regional areas are
often represented by practitioners who do not possess sufficient
specialty and expertise in Children’s Court matters, and
have no knowledge of the application of the doli incapax
principle. Placing the burden on the accused to raise
doli incapax as an issue may well place such child
defendants who are represented by such practitioners at
a disadvantage.
The HREOC/ALRC
Report, Seen and Heard: Priority for Children in the Legal
Process acknowledged that often the operation of the doli
incapax principle may be problematic as, in order to
rebut the presumption, the prosecution has sometimes been
permitted to lead prejudicial evidence that would ordinarily
be admissible. This proposal would allow the defence the choice
as to whether it would be advantageous for the principle
of doli incapax to be raised.
Should
the rebuttable presumption of doli incapax be altered to:
(d) Restrict the offences to which it applies to those which
are dealt with according to law?
Currently the
presumption applies to all offences, irrespective of the
Court where the offence is heard. If this proposal was accepted,
doli incapax would not be available to those offences
heard in the Children’s Courts.
This proposal
is rejected as it would be a complicated exercise whereby
inconsistent results could be the outcome.
It is incongruous that different courts have different
tests of criminal responsibility and criminal mental intent
for children aged 10-14.
Indeed, the test of ascertaining criminal mental
intent and requisite knowledge should not differ merely
because of the nature of the offence charged, the venue
of the hearing or the different sentencing options available.
As demonstrated above, in reality, the issue of doli
incapax is relevant to no more than 10% of matters involving
10-14 year olds in the NSW Children’s Court, and is solely
responsible for acquittal in even fewer matters.
Accordingly, restricting the availability of the
principle to matters in the higher courts will not have
a material effect on the rate of conviction in the NSW Children’s
Court.
Should
the rebuttable presumption of doli incapax be altered to:
(a) Shift the burden of proof to the accused? (e) Lower
the age to which it applies to between 10 and 12 years?
The Senior Children’s
Magistrate, Mr. Stephen Scarlett, has stated that the age
of 12 is a more suitable cut-off for the doctrine of doli
incapax than the age of 14, as it equates to the age of
transition from primary school to high school, and it acknowledges
that children are more sophisticated and mature today, by
virtue of their greater access to education and information
technology.
This proposal is rejected for reasons already stated in this paper. To reiterate, the doli incapax principle
is a practical vehicle by which it is acknowledged that
for the age group of 10-14 in particular, children have
wide ranging rates of intellectual and emotional development
and differing levels of understanding. Importantly, it recognises that the rate of
development cannot be standardised across this particular
age group. It takes account that even children nearing
the age of 14, can lack the developmental capacity and maturity
of their peers, and accordingly, should not be regarded
as having the moral culpability of an adult.
Indeed, intellectually disabled and developmentally delayed children in
the 12-14 age group need to have the protection of the principle
in order to safeguard against wrongful conviction based
on adult criminal intent. No amount of access to education and information
technology for the generation or age group as a whole, can
make up for the lack of moral development and maturity of
the developmentally delayed or intellectually disabled 12-14
year old.
In addition, lowering the upper age limit to 12 will place New South Wales
at odds with every other jurisdiction in Australia. It is incongruous that a 13 year old child
may be held criminally responsible and culpable in NSW,
but not elsewhere in Australia.
Also, by making the age of 12 the entry point into
full adult criminal responsibility, New South Wales will
be out of step with most industrialised countries in Europe
and Asia.
CONCLUSION
The protection
of vulnerable children in our society has always been a
tenet of the Australian criminal justice system. The system
has acknowledged the need for a legal transitional period
between childhood and adulthood.
The common law presumption of doli incapax
has played one small part of this legal transitional period.
Arguments which
point to the increased sophistication and other advantages
enjoyed by children of today, compared to previous times,
to support a lowering of the upper age limit to which this
presumption applies, ignore the fact that not all children
in the 10-14 age group benefit from the increased access
to information and education.
There are also conflicting views as to whether such
greater access to information and education results in a
higher rate of development of moral awareness and culpability.
Significantly,
all Australian jurisdictions acknowledge that the doli
incapax principle is relevant up to the age of 14 (15
in Queensland), with four jurisdictions recognising application
of the principle for 10-14 year olds (15 year olds in Queensland)
in legislation. It
is recommended that New South Wales do likewise.
The Australian
Law Reform Commission and the Human Rights and Equal Opportunity
Commission in their extensive 1997 inquiry into children
and the legal process, regarded the principle of doli
incapax as a practical way of acknowledging young people’s
developing capacities, allowing for a gradual transition
to full criminal responsibility. It noted that, as a principle, it forced police,
prosecutors and the judiciary ‘…to stop and think, however
briefly in some cases, about the degree of responsibility
of each individual child’.
Accordingly,
the Commission strongly supports maintaining the application
of the presumption of the doli incapax principle
in all criminal matters involving children aged 10-14, and
that to facilitate a greater level of consistency in application
of the principle, that it be given legislative recognition
by appropriately amending the Children’s Criminal Proceedings
Act 1987.
INTERNATIONAL
COMPARISONS OF THE STATUTORY AGE OF CRIMINAL RESPONSIBILITY
| COUNTRIES & TERRITORIES |
AGE OF CRIMINAL RESPONSIBILITY |
COUNTRIES & TERRITORIES |
AGE OF CRIMINAL RESPONSIBILITY |
|
Cyprus |
7 |
Austria |
14 |
|
Ireland |
7 |
China & Taiwan |
14 |
|
Liechtenstein |
7 |
Romania |
14 |
|
Switzerland |
7 |
Slovenia |
14 |
|
India |
7 |
Latvia |
14 |
|
Singapore |
7 |
Lithuania |
14 |
|
Scotland |
8 |
Czech Republic |
15 |
|
Northern Ireland |
8 |
Denmark |
15 |
|
Malta |
9 |
Estonia |
15 |
|
England & Wales |
10 |
Finland |
15 |
|
Malaysia |
10 |
Iceland |
15 |
|
Greece |
12 |
Norway |
15 |
|
Canada |
12 |
Slovakia |
15 |
|
San Marino |
12 |
Sweden |
15 |
|
Turkey |
12 |
Japan |
16 |
|
Netherlands |
12 |
Andorra |
16 |
|
France |
13 |
Poland |
16 |
|
Bulgaria |
14 |
Portugal |
16 |
|
Germany |
14 |
Spain |
16 |
|
Hungary |
14 |
Belgium |
18 |
|
Italy |
14 |
Luxembourg |
18 |
