AGE OF CRIMINAL
RESPONSIBILITY
Ever seen a 5 year old kid on trial?
Of course not.
Why not? They’re evil…
There is a long-standing (500-1000 years old) agreement in most parts of the world that children
are NOT to be held responsible for crimes because they’re not totally aware of what they are
doing.
The age at which a child can be held responsible for a crime is called the age of criminal
responsibility.
In Australia, the lowest age at which someone can be charged with a crime is 10 (in line with
our commitment to the Convention on the Rights of the Child (CRoC). The average around the
world is 13. In the United States, a lot of States have a minimum age of just 6!
Why the differences?
AGE OF CRIMINAL
RESPONSIBILITY
The idea is called doli incapax, meaning ‘incapable of crime’.
A child in NSW under 10 is considered to be doli incapax, meaning that they don’t
understand that what they did was seriously wrong (from R v Gorrie (1919).
These words are VERY important. My 3 year old son knows
when he has done something naughty or that he’s being
mischievous, but it takes a much more developed mind to
understand that something is seriously wrong.
The differences between countries (and States within countries) has developed because
of 2 things:
1. Different opinions about when children actually do become aware that their actions
are seriously wrong; and
2. Every time a kid around 10 commits a terrible crime (like murder), the victim’s family
is obviously distraught, and wants the murderer to face court (to “get justice”). So,
the media ends up getting involved, and we ask the same question that has been
asked over and over and over – should we get rid of the principal of doli incapax?
Why not?
AGE OF CRIMINAL
RESPONSIBILITY
In NSW…
Born
Doli
Incapax
Age of Criminal
Responsibility
End of ‘doli
incapax’
presumption
No longer a
juvenile
10
14
18
Rebuttable
Presumption
of Doli Incapax
No Doli
Incapax, but
still a juvenile
Full
responsibility
‘Presumption’ when you assume something is true without even having to check.
‘Rebuttable’ when there is a way of refuting/proving something wrong.
So, there is a presumption that a kid between 10 and 14 isn’t able to
know if he’s doing something seriously wrong BUT this presumption IS
REBUTTABLE (meaning that it’s up to the Prosecution to prove that the
kid IS capable of knowing what is right and what is seriously wrong)
AGE OF CRIMINAL
RESPONSIBILITY
In NSW…
Born
Doli
Incapax
Age of Criminal
Responsibility
End of ‘doli
incapax’
presumption
No longer a
juvenile
10
14
18
Rebuttable
Presumption
of Doli Incapax
No Doli
Incapax, but
still a juvenile
Full
responsibility
Why does it go from green to yellow gradually?
If the kid is 10, the prosecution has to have an overwhelming
amount of evidence to show that he’s capable of
understanding that what he did was seriously wrong.
The closer the kid is to 14, the easier the Prosecution’s job is
to prove that he understood what he was doing.
AGE OF CRIMINAL
RESPONSIBILITY
DISCUSS the issues
surrounding the age of
criminal responsibility
AGE OF CRIMINAL
RESPONSIBILITY
You might already be able to see where
this might raise a few questions…
So, we’re gonna discuss the issues
surrounding (about) the age of criminal
responsibility.
AGE OF CRIMINAL
RESPONSIBILITY
DISCUSS the issues
surrounding the age of
criminal responsibility
AGE OF CRIMINAL
RESPONSIBILITY
AGE OF CRIMINAL
RESPONSIBILITY
A few horrible cases first, just so you know why the debate about the
age of criminal responsibility comes up every once in a while…
Jamie Bulger (1993) (UK)
These two 10 year-old kids kidnapped a 2 year old
(Jamie Bulger), torturing and killing him.
Because they tried to hide what they had done, and
that it took them so long to do it, they were found
guilty and spent about 10 years locked up.
DISCUSS the issues
surrounding the age of
criminal responsibility
AGE OF CRIMINAL
RESPONSIBILITY
R v LMW (death of Corey Davis) (1999)
A 10 year old boy threw a 6 year old (who he knew couldn’t swim) into the Georges
River (Macquarie Fields). He drowned.
Originally, the case against him was dismissed, but there was enormous outrage in the
media about it. The NSW DPP (Nick Cowdery) got around the Children’s Court and took
the case straight to the Supreme Court, charging LMW with Manslaughter.
The jury heard that LMW was immature for his age (more like 8, rather than 10/11) and
found him not guilty in less than 3 hours.
So you can see where the controversy comes in –
Where’s the justice for the victim? Especially when
the victim is a child too? And their family?
AGE OF CRIMINAL
RESPONSIBILITY
The effect of the Jamie Bulger case in the UK…
1993 – Jamie Bulger is murdered in the UK. Two 11 year-olds are
found guilty and sentenced to a minimum of 10 years in jail.
1998 – The ‘New Labour’ government in the UK passes the Crime and
Disorder Act 1998, which removes the rebuttable presumption of doli
incapax for 10-14 year-olds, leaving the UK with one of the lowest
ages of criminal responsibility in the world.
DISCUSS the issues
surrounding the age of
criminal responsibility
1996-2006 – There is a 550% increase in the number of juveniles
sentenced to jail in the UK
The effect of the Corey Davis case in Australia…
AGE OF CRIMINAL
RESPONSIBILITY
1997 – Australian Law Reform Commission recommends raising the
age of criminal responsibility to 14 in all States and Territories. It
doesn’t happen.
1998 – Corey Davis dies.
1999 – LMW is charged and put on trial in the Supreme Court of NSW.
The Prosecution fails to rebut the presumption of doli incapax.
2000 –The Attorney-General’s department publishes A Review of the
Law on the Age of Criminal Responsibility of Children after a lot of
media attention about the Corey Davis case. The decision is made to
keep the rebuttable presumption of doli incapax.
AGE OF CRIMINAL
RESPONSIBILITY
Issue 1: 10-14 year old kids probably don’t know right from wrong.
The killers of Jamie Bulger
obviously knew what they were
doing, they even tried to cover-up
their crime.
DISCUSS the issues
surrounding the age of
criminal responsibility
AGE OF CRIMINAL
RESPONSIBILITY
One of the killers of Jamie Bulger
was heard to be talking about
“bringing him back to life”, like in a
Disney movie. THEIR brains weren’t
fully developed.
But there are kids who even do the
HSC at age 14, what about them?
Can someone doing the HSC really
not understand what actions are
seriously wrong?
That’s why it’s a REBUTTABLE
presumption – if they DO understand
what “seriously wrong” really means,
then they CAN be put on trial
AGE OF CRIMINAL
RESPONSIBILITY
Issue 2: Has there been any change in how well children understand
their actions in the past 100 years?
Kids have access to an
almost INFINITE amount of
information. How could
they not know the
consequences of their
actions?
“Information” doesn’t mean moral or ethical guidance.
Just because a child knows more, it doesn’t mean that
he has a greater ability to make wise decisions.
Perspective Program, ABC Radio National (2004)
DISCUSS the issues
surrounding the age of
criminal responsibility
Children receive a much
better education today (no
more leaving at the end of
Year 6).
Most of the young people facing up to the Children’s
Court are chronically absent from school (whether by
neglect, truancy or expulsion)
AGE OF CRIMINAL
RESPONSIBILITY
Kids watch so much adult
content on tv and on the
internet, and they are
much more comfortable
“living in the world of
adults” rather than being
“innocent” children like
they used to be (shielded
from seeing the real
consequences of people’s
actions)
But at the same time, kids are really only pretending to
be adults. They’re not paying mortgages or raising kids
of their own.
“There are many indicators that conditions in modern
society may be making it more difficult for children to
learn what is right and wrong than is commonly
thought” (e.g. watching realistic portrayals of violence
without seeing the victim as a “real person” may have a
desensitizing effect, leading a young person to commit
a violent act without really feeling bad because they’ve
seen it and done it all before, but virtually) - Doli
Incapax: Why Children Deserve its Protection Murdoch University Electronic Journal of Law (2003)
AGE OF CRIMINAL
RESPONSIBILITY
DISCUSS the issues
surrounding the age of
criminal responsibility
AGE OF CRIMINAL
RESPONSIBILITY
So what’s going to happen?
So, yeah, the rebuttable presumption of doli incapax will probably
disappear in the future when a 10 or 11 year-old kid commits a
horribly gruesome crime. The media will go berserk and demand
action and the government will follow through (especially if it is an
election year). It will get popular support because, as the
Australian Law Reform Commission found in the report Young
Offenders (2005), there is this nagging public perception that
youth crime is “rampant” and that young people are increasingly
uncontrollable, but it’s generally not true.
Another option?
Some lawyers have argued that it might actually just be a better
idea to shift the burden of proof to the Defence (meaning that, if
a 10-13 year-old is facing charges, it will be up to his lawyer to
prove (on the balance of probabilities) that he didn’t understand
that what he was doing was seriously wrong. Could be a good
compromise, instead of losing it all together…
AGE OF CRIMINAL
RESPONSIBILITY
DISCUSS the issues
surrounding the age of
criminal responsibility
AGE OF CRIMINAL
RESPONSIBILITY
The question of keeping, raising or lowering the age
of criminal responsibility came up again in 2012.
The submissions to a government inquiry
suggested:
Mayor of Wentworth Shire Council
Lower to 8
Bar Association
Keep at 10
NSW Police
Keep at 10
UN High Commissioner for HR
Raise to at least 12
Law Society
Raise to 13
Youth Justice Coalition
Raise to 14
NSW Commissioner for Children and
Young People
Raise (over time) to 16
9 year old criminal masterminds
Raise by one year, every year
from now on…
Age of criminal consent: 16 or 8
(SMH 2012)