Clickbaiting Youth Crime

In covering youth crime rates, Australian media have forgot the talk about how the system deals with children aged 10-14.

During 2023, youth crime once again became one of the hottest political issues in Australia, and with the Northern Territory and Queensland elections being held later this year, it will remain important. However, from a legal perspective, there is one aspect of the debate that mainstream media is reluctant to discuss.

It has traditionally been the case that children under the age of 10 cannot be held criminally responsible for any crimes they allegedly committed. On the other hand, children over the age of 14 are held criminally responsible.

Some jurisdictions, including the Northern Territory, are raising that threshold to 12, and there are calls to bring it up to 14.

Meanwhile, the Queensland government has rejected these calls, and imposed even harsher restrictions on youth offenders.

The battleground here is the gap between 10 and 14. But, while the media has sensationalised any allegations against children in that gap, they rarely explain why that gap exists.

Doli incapax is a Latin phrase meaning ‘incapable of trickery’ or ‘incapable of evil,’ and automatically applies to those under 10. But, when applied to the gap between 10 and 14, it is not automatic; rather, it is a presumption.

The prosecution must demonstrate that a child is ‘criminally responsible’ or ‘culpable’ of telling the difference between right and wrong, and properly understand what they are doing and the consequence that it will have.

This is a long-standing common law stance that has since been adopted by legislation, such as in Section 29(1) of the Criminal Code Act 1899 (Qld).

It is based on the understanding that children develop differently, due to a range of circumstances, such as birth, genetics, or how they were raised.

Using these facts and circumstances, the prosecution must ‘rebut’ or overturn the presumption that the child is criminally responsible for what they are doing.

This is the reverse for adults. If a defendant wishes to prove that they are not criminally responsible, the burden of proof is on them, not the prosecution.

For example, in R v Niguidula [2023], a borderline personality disorder diagnosis wasn’t sufficient to overcome the ‘intent or recklessness’ component of murder. However, a medical evaluation did reduce the sentence length.

In DPP v Kakar [2023], the ACT Supreme Court was satisfied that a diagnosis of schizophrenia was sufficient to prove the defence of ‘mental impairment,’ voiding criminal responsibility. However, Part 13 of the Crimes Act 1900 (ACT) requires the defendant to be detained in a psychiatric facility instead.

This is not to say that the question of criminal responsibility in a child can be equated to that question in relation to adults. Rather, it demonstrates a keen awareness of mental health issues and developmental differences. This is important for all sides of the debate to remember.

The common law originally states that doli incapax applies to ages 7-14, which dates back centuries, but legislation has raised that age to 10 in all Australian jurisdictions.

Similarly, and somewhat confusingly, the common law tends to refer to all children as “infants,” because of the limited rights they have, but this was also corrected by legislation.

Applying doli incapax to children under the age of 10 in common law was affirmed as late as 1966, in McHugh v Watson, although that was a negligence case.

There, in a 3:1 split, upholding an earlier High Court decision by Justice Windeyer, the court concluded that a 12-year-old child should be expected to behave and act with the same duty of care as would be expected by a reasonable child of that age.

The threshold has since been raised because of how society’s understanding of childhood development has evolved, which politicians interpreted as a need for reforming the common law presumption.

How courts have approached this issue has changed since McHugh v Watson. Instead of considering how a reasonable person of that age would act, the law has become more nuanced and individual-focused.

Rejecting the stance that the level of evidence needed to rebut the presumption was decreased as a child aged, which was similar to the theory in McHugh v Watson, the High Court made the following observation in RP v The Queen (2016):

“The difficulty with those statements is that they are apt to suggest that children mature at a uniform rate. … Rebutting that presumption directs attention to the intellectual and moral development of the particular child.”

Just like more recent examples, McHugh v Watson and RP v The Queen were very controversial cases, although in different ways, so those judgments haven’t been explored here, because this article is already long. But both make for interesting reads.

At the end of the day, all arguments for and against reform have some merit. It is not the point of this article to pick a side, only to fill a gap in how other media outlets have approached this issue.

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