[1] S18(1) Criminal Code (Tas), effective 1.2.2000; s71(1) Children and Young Persons Act 1999 (ACT), effective 1.5.2000. The United Nations Committee on the Rights of the Child has, however, noted in its Concluding Observations of the Committee on the Rights of the Child: Australia from 10.10.1997 that it considers the age of ten to be too low for the minimum age of criminal responsibility, CRC/C/15/Add.79, para 29. It should also be noted that in 2003 Hong Kong raised the age of absolute criminal incapacity from seven to ten in s3 of the Juvenile Offenders Ordinance. This was based on the Law Reform Commission of Hong Kong's Report on the Age of Criminal Responsibility in Hong Kong (2000), which can be found at http://www.info.gov.hk/hkreform/reports/rage-e.doc.
[2] Commonwealth: s7.
[2] Criminal Code Act 1995; ACT: s71(2) Children and Young Persons Act 1999; NT: s38(2) Criminal Code; NSW: common law; Qld: s29(2) Criminal Code; SA: common law; Tas: s18(2) Criminal Code; Vic: common law; WA: s29, second para Criminal Code.
[3] (1919) 8
[3] JP 136.
[4] For discussion of whether the term meant understanding of legal or moral wrongfulness, see for instance Glanville Williams, Criminal Law, The General Part, 2nd ed (London: Stevens, 1961), 817-818; see also Thomas Crofts, The Criminal Responsibility of Children (Aldershot: Ashgate, 2002), 42-45.
[5] For the case of insanity see for instance Stapleton v The Queen (1952) 86 CLR 356.
[6] This is the requirement at common law and in the Commonwealth Criminal Code. Some of the statutory provisions, however, speak of the capacity to know (ACT, NT, Qld, Tas, WA).
[7] R v M (1977) 16 SASR 589 and R v Whitty (1993) 66 A Crim R 462.
[8] R v M [1977] SASR 589 at 591.
[9] UK Hansard, House of Commons (1
[9] March 1998), 832.
[10] Glanville Williams, above n 4 at 814.
[11] Glanville Williams, "The Criminal Responsibility of Children" [1954] Criminal Law Review 498.
[12] Hale, Mathew, History of the Pleas of the Crown, vol 1 (1736), 27.
[13] C v DPP [1995] 2 All Er 43 at 62. For further details and analysis of the evidence employed to rebut the presumption of doli incapax see Thomas Crofts, "Rebutting the presumption of doli incapax" 62 (1998) Journal of Criminal Law 185-193.
[14] C v DPP [1995] 2 All ER 43 at 62.
[15] See B v R (1958) 44 Cr App R 1 at 3.
[16] C v DPP [1995] 2 All ER 43 at 62.
[17] See for instance JM v Runeckles (1984) 79 Cr App R 255, where admission of the criminal act was taken as proof of understanding. See, however, IPH v Chief Constable of South Wales [1987] Crim LR 42, where admission of the act was seen as showing understanding of the consequences of the act but not that the act was wrong. Also T v DPP [1989] Crim LR 498, where denial was seen as showing that the child understood the wrongfulness of the act. Regarding the relevance of admission of past offences, see R v M [1977] SASR 589 at 594.
[18] L v DPP [1992] 2 Cr App R 501.
[19] JBH and JH v O'Connell [1981] Crim LR 632.
[20] Sheldon [1996] 2 Cr App R 50.
[21] B and A (1979) 69 Cr App R 362.
[22] Ex parte N [1959] Crim LR 523.
[23] B and A (1979) 60 Cr App R 362; see also R v M [1977] SASR 589 at 594-595.
[24] Michael Dalton, Countrey Justice (1619), 223-224.
[25] William Blackstone, Commentaries on the Laws of England, Book 4 (1769), 23.
[26] Laws of King Ine 7.2 and Laws of King Aethelstan (Council of Greatanlea) both reproduced in Wiley Sanders (ed), Juvenile Offenders for a Thousand Years: Selected readings from Anglo-Saxon Times to 1900 (Chapel Hill: University of North Carolina Press, 1970), 3.
[27] James Fitzjames Stephens, A History of the Law of England, vol 2 (London: Macmillan, 1883), 98.
[28] Glanville Williams, above n 11 at 496.
[29] Home Office, Report of the Committee on Children and Young Persons, Cmnd 1191 (1960), chaired by Viscount Ingelby. Although it must be noted that the Ingelby Committee did suggest this as part of a package of reforms designed to introduce a welfare system and so remove children from the criminal justice system.
[30] C v DPP [1995] 1 Cr App R 118.
[31] Michael Freeman, "The James Bulger tragedy: Childish Innocence and the Construction of Guilt", in: Anne McGillivary (ed), Governing Childhood (Aldershot: Dartmouth, 1997), 123.
[32] The following comments are from C v DPP [1995] 2 All ER 43. Lord Bridge of Harwich: "In today's social conditions the operation of the presumption that children between the ages of ten and fourteen are doli incapax may give rise to anomalies or even absurdities. But how best to remedy this state of affairs can, in my view, only be considered in the context of wider issues of social policy respecting the treatment of delinquency in this age group" (at 46). Lord Lowry: "This is a classic case for parliamentary investigation, deliberation and legislation" (at 64). Lord Jauncey: " I add my voice to those critics and express the hope that parliament may once again look at the presumption" (at 45). Lord Ackner: "I have, however, considerable sympathy with the criticisms expressed by laws J and would hope that parliament will provide and early opportunity for its review" (at 46).
[33] Home Office, Tackling Youth Crime: A Consultation Paper (1997), para 15.
[34] See for instance, Michael Grove, "Are you old enough? In defence of doli incapax", (1996) Law Institute of Victoria Journal 38; Patricia Blazey-Ayoub, "Doli Incapax", (1996) 20 Criminal Law Journal 34.
[35] Australian Law Reform Commission, Seen and Heard: Priority for Children in the Legal Process (1997), ALRC Report No 84, Recommendation 195.
[36] Criminal Code Amendment Bill, Queensland Hansard, (18 August 1999), 3178-3179.
[37] New South Wales Attorney General's Criminal law Review Division, A Review of the Law on the Age of Criminal Responsibility of Children (2000).
[38] Patricia Blazey-Ayoub, above n 34 at 37, also notes that: "Of concern is the fact that with questions of law and order prominent on the agenda of major political parties, the presumption may be abolished, before it can be properly considered by the High Court."
[39] Such a process has been noted in regard to the Divisional Courts decision in C v DPP. Hay calls this the judicial internalisation of the discourse of moral panic. This is explained as the judiciary feeling compelled to act to restore authority and avert criticism of the justice system when the media have caused a moral panic over a certain social issue. Colin Hay, "Mobilization through Interpellation: James Bulger, Juvenile Crime and the Construction of Moral Panic" (1994) 4 Social and Legal Studies 200.
[40] Australian Law Reform Commission, above n 33 at 18.3.
[41] Home Office, Tackling Youth Crime: A Consultation Paper (1997), para 8.
[42] Mr Paff, Queensland Hansard, (18 August 1999), 3179.
[43] C v DPP [1995] 2 All ER
[43] at 57.
[44] Association of Child Welfare Agencies, Newsletter 2000. <http://www.acwa.asn.au/acwa/publications/newsletter/2000/feb2000.html>.
[45] John Graham, Benjamin Bowling, Young People and Crime (1995), Home Office Research Study 145, 39-42.
[46] A similar point was raised regarding the United Kingdom by Baroness Mallalieu, UK Hansard, House of Lords (19 March 1998), 834.
[47] New South Wales Attorny General's Criminal Law Review Division, A Review of the Law on the Age of Criminal Responsibility (2000), Issue 1.
[48] Cited in Trish Luker, Legal Information Access Centre, "The Age of Criminal Responsibility" [1999] HotTopics 3.
[49] Hartmut von Henting, Das allmähliche Verschwinden der Wirklichkeit (Wien: Hanser, 1984).
[50] [1996] 2 Cr App R
[50] at 54.
[51] Michael Freeman, above n 31 at 120.
[52] [1996] Neue Zeitschrift für Strafrecht 601.
[53] Ibid at 602.
[54] This was acknowledged by the Ingelby Committee when it discussed reforming the presumption of doli incapax, Home Office, Report of the Committee on Children and Young Persons, Cmnd 1191, 1960, para 81.
[55] Gladstone Committee, Parliamentary Papers, vol 56 (1895), 15. For a modern debate on the link between lack of parental discipline of the young and delinquency see for instance, Michael Gottfredson and Travis Hirschi, A General Theory of Crime (Stanford: Stanford University Press, 1990).
[56] See for instance, Home Office, No More Excuses (1997), para 1.5.
[57] McGuire J., cited in Queensland Hansard (4 October 2000), 3453.
[58] Ibid at 2455.
[59] Jeffrey Blustein, "Adolescence and Criminal Responsibility" (1985) 2 International Journal of Applied Philosophy 12.
[60] Louis Schetzer, Director of National Children's and Youth Law Centre, The Law Report, ABC Radio National, 07.03.2000.
[61] Quoted in Richard Phillips, "Child psychiatrist discusses Supreme Court manslaughter trial of young boy in Australia" World Socialist Web Site, 11 January 2000. < http://www.wsws.org/articles/2000/jan2000/bwin-j11.shtml>.
[62] Home Office, Tackling Youth Crime (1997), para 9. Also Mr Springborg, Queensland Hansard, (4 October 2000), 3456.
[63] See for instance, Dr Prenzler, Queensland Hansard (4 October 2000), 3455.
[64] Jack Straw, UK Hansard, House of Commons (27 November 1997), 1101.
[65] The West Australian, 14 June 2003.
[66] Jeremy Blustein, above n 59 at 14.
[67] Justice, Children and Homicide: appropriate measures for juveniles in murder and manslaughter cases (1996), para 4.3.
[68] Australian Law Reform Commission, above n 33 at 18.184.
[69] Michael Freeman, above n 31 at 120.
[70] T v UK (application number 24724/94) and V v UK (application number 24888/94), judgement delivered 16th December 1999, judgement available at <http://www.echr.coe.int/Eng/Judgments.htm>. For the implications of this case for Australia, see Gail Hubble, "Juvenile defendants: taking the human rights of children seriously", (2000) AltLJ 116 at 119-120.
[71] The UN Committee on the Rights of the Child has already noted with concern that children can be tried in adult courts in certain circumstances in the UK. Concluding Observations of the Committee on the Rights of the Child: United Kingdom and Northern Ireland (2002), CRC/C/15/Add.188, para 60(b). It recommended that the UK ensures that children are not tried as adults (para 62(c)). Such concerns could also be raised about Australia.
[72] Section 401(4)(b) Criminal Code (WA).
[73] For instance Ms Barbara Holborow, former children's magistrate, claimed that doli incapax is a myth that has helped children escape guilty verdicts. Refered to in Linda Doherty, "Children still presumed to be innocent - at least until age 14", Sydney Morning Herald 12.02.2001.
[74] Mr Pfaff, Queensland Hansard (18 August 1999), 3179.
[75] H.L.A. Hart, Punishment and Responsibility (Oxford: Oxford University Press, 1968), 181.
[76] Justice, above n 67 at 3.12.
[77] Nicola Padfield, "No More Excuses" (1998) 148 New Law Journal 561.
[78] James Fitzpatrick Stephen, above n 27 at 98.
[79] House of Commons Standing Committee B on the Crime and Disorder Bill, ninth sitting, clause 31 (12 May 1998), col 332.
[80] Mr Foley, Attorney-General and Minister for Justice and Minister for the Arts, Queensland Hansard (4 October, 2000), 3453.
[81] Association of Child Welfare Agencies, Newsletter 2000. <http://www.acwa.asn.au/acwa/publications/newsletter/2000/feb2000.html>.
[82] L. Schetzer, Director and Principle Solicitor, National Children's and Youth law Centre, witness before the Law Reform Committee, Inquiry into legal services in rural Victoria, in Wodonga, 13 June 2000. Available at <http://www.parliament.vic.gov.au/lawreform/Legal_Services_Inquiry/default.htm>.
[83] For example, Andrew West, (1998) 19 Queensland Lawyer 56; Michale Grove, above n 34 at 41; Mr Foley, Queensland Hansard (4 October 2000), 3452; see also, C v DPP [1995] 2 All ER 43 at 63; CC v DPP [1996] 2 Cr App R 375.
[84] L. Schetzer above n 82.
[85] Judy Cashmore, "Should the age of criminal responsibility be lowered in NSW?", On Line Opinion 15/07/00. <http://www.onlineopinion.com.au/July00/Cashmore.htm>.
[86] Roger Evans, The Conduct of Police Interviews with Juveniles, The Royal Commission on Criminal Justice, Research Study Number 8 (1993), 29.
[87] See Sue Bandalli, "Abolition of the Presumption of Doli Incapax and the Criminalisation of Children" (1998) 37 Howard Journal of Criminal Justice 117.
[88] Commentary on rule 4.1. <http://www.unhchr.ch/html/menu3/b/h_comp48.htm>.