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Fitz-Gibbon, Kate; O'Brien, Wendy --- "A Child's Capacity to Commit Crime: Examining the Operation of Doli Incapax in Victoria (Australia)" [2019] IntJlCrimJustSocDem 2; (2019) 8(1) International Journal for Crime, Justice and Social Democracy 18
- A Child’s Capacity to Commit Crime: Examining the Operation of Doli Incapax in Victoria (Australia)
- Introduction
- In recent years, Australian criminal justice responses to children in conflict with the law have been the subject of unprecedented
scrutiny. From the establishment of a Royal Commission (2017) in response to harrowing images of children in restraints in a Northern
Territory youth detention centre, to multiple Victorian Supreme Court rulings against the imprisonment of children in adult prison
facilities,1 an increasing awareness of the dangers of children’s interaction with the criminal justice system has highlighted
the importance of legal safeguards for those in conflict with the law. National attention to the treatment of children in detention
has contributed to mounting recognition that correctional facilities are poorly suited for children, and that children should be
diverted from the criminal justice system at the earliest possible stage.
-
- One key way that diversion of very young children can be achieved in Australian law is through the operation of the presumption of
doli incapax. Doli incapax, which translates from Latin into ‘incapable of committing an evil act’ (Arthur 2010: 43),
operates as a rebuttable presumption by which children between the ages of 10 and 13 are presumed to be incapable of understanding
the difference between naughty behaviour and criminal acts that are ‘seriously wrong’. The presumption is available in
all Australian states and territories and provides that, where a child is unable to comprehend this distinction, they should not
be held criminally responsible for their actions. Despite the key role that doli incapax should play in diverting the youngest offenders
away from the criminal justice system, its operation to date has been largely unexamined.
-
- This article seeks to directly address this gap in current understandings in five parts. First, it sets out the legal justification
and test for the presumption of doli incapax in Australia, and next provides an overview of the qualitative study that informs the
analysis in this article. Third, it critically examines the process of determining doli incapax from the perspective of those involved
in the Victorian youth justice system, with attention to the reversal of the onus of proof, the realities of legal practice in regional
areas, as well as the effect of the length of time that it takes to determine if a child is doli incapax. Building on this analysis,
this article next examines the value of individualised assessments and the need for a holistic service response; finally, it explores
practitioners’ views on future needs for reform. The article concludes by calling for enhanced legal protections for very young
children in conflict with the law in Victoria.
-
- The presumption of doli incapax in Australia
- The rebuttable presumption of doli incapax applies to all children aged 10 to 13 years at the time an alleged offence is committed.
Derived from the longstanding principle of English common law, the presumption was designed to provide a legal safeguard to protect
children from ‘suffering the full extent of the law’ (Arthur 2010: 45). Its operation is well captured in the following
English case law:
-
- An important feature of doli incapax is the ‘rebuttable presumption’, which places the onus of proof with the prosecution.
The test for rebutting doli incapax is established in Australian case law:
- 1. that the prosecution must rebut the presumption as an element of their case
- 2. that the prosecution must demonstrate that the child knew ‘the act was seriously wrong as opposed to naughty’
- 3. that the evidence relied upon by the prosecution ‘must be strong and clear beyond all doubt or contradiction’
- 4. that the evidence to prove ‘the accused’s guilty knowledge, as defined above, must not be the mere proof of doing the
act charged, however horrifying or obviously wrong the act may be’
- 5. that the ‘older the child is the easier it will be for the prosecution to prove guilt or knowledge’. (R v CRH unreported
NSWSCA 1996, per Hidden and Newman JJ)
- Where the prosecution seeks to rebut the presumption, evidence produced may include a psychological assessment of the child; a police
interview transcript or recording; the child’s prior criminal history; evidence given by parents, teachers, psychologists or
psychiatrists; as well as evidence of the child’s behaviour before and after the alleged criminal act (Johnson and Chambers
2006; see also RP v The Queen [2016] at 9).
- The threshold for determining ‘seriously wrong’ is well established in English and Australian case law, whereby the courts
have stated:
- The presumption is designed to recognise the differences in maturity between adult and child offenders, and the fact that very young
children lack the capacity to understand the implications of their actions.
- Doli incapax is available in every Australian state and territory. In Tasmania, Western Australia, Queensland, the Australian Capital
Territory and the Northern Territory it has been enacted in legislation, while in New South Wales, South Australia and Victoria it
is based on common law (Australian Law Reform Commission [ALRC] 1997). While the presumption animated a degree of debate in England
and Wales prior to its abolition in 1998 (Home Office 1997), in Australia doli incapax has been the subject of very limited scholarly
analysis and political debate. As a result, little is known about its operation and the extent to which it effectively delivers upon
its aim of protecting very young children from criminal liability. This lack of empirical research on the topic is further hampered
given neither the Children’s Court nor any independent monitoring body produces annual statistics on the number of cases in
Victoria in which a child is found to be doli incapax. There are also no publicly available records on the number of cases in which
the presumption is raised but rebutted successfully by the prosecution.
-
- Research design
- The process of determining doli incapax
- The interviews revealed general support for the availability of the presumption, with participants describing doli incapax as ‘incredibly
valuable’ (RegCounselF), ‘really useful’ (RegCounselD), ‘imperative to have’ (RegConferencingB), ‘an
invaluable mechanism’ (RegCounselA) and ‘a really important area’ of law (MetroCounselE). However, despite its
recognised benefits, there was a general view among those interviewed that the presumption has been falling into disuse in Victoria
in recent years and that, where used, it is done so in an ad hoc and procedurally questionable way.
- Several participants attributed inconsistencies in practice to the complexities present in the process of rebutting the presumption
or proving that a child is doli incapax. Participants described it as ‘very confusing’ (MetroDefenceA), ‘a bit
convoluted’ (MetroCounselF), ‘impractical’ (MetroCounselC) and as a ‘very challenging and complex area ...
[that] we still don’t always get it right’ (MetroCounselE). Building on this view, one legal counsel noted, ‘I
think sometimes doli incapax makes it a bit complicated, because even the language and trying to explain that to a young person can
be quite confusing’ (MetroDefenceA).
- Reflecting this complexity, many participants discussed the ad hoc implementation and operation of doli incapax in practice. These
views are examined in more detail in the following sections, with particular focus on the practical operation of the burden of proof,
the realities of rural and regional practice, and the lack of built-in service responses.
-
- The reverse onus
- One of the key features of the presumption of doli incapax is that it locates the onus of proof with the prosecution, as recently
affirmed by the High Court of Australia:
- Despite this, interviews revealed a common view that, in Victorian practice, the onus is more commonly located with the defence, who
bear the unofficial burden of providing a report (at their cost) to prove that the defendant is doli incapax. As one participant
explained:
- Demonstrating that this viewpoint is neither unique to one participant’s experience nor to metropolitan practice, a regional
participant described an identical trend:
- Other participants similarly commented that in practice the onus being placed on the prosecution ‘doesn’t happen’
(MetroCounselE), ‘is never happening in practice’ (MetroDefenceA) and that ‘it becomes sort of a reverse onus’
(MetroCounselG). This unofficial reversal of the onus means that the burden of costs for forensic assessments falls to the defence
or the Children’s Court Clinic (located in metropolitan Melbourne). One participant described this as placing ‘significant
pressure on the defence’ (RegCounselA), while another recognised the resource pressures facing the Children’s Court Clinic.
Some participants indicated that without such resources access to and the quality of such assessments could be jeopardised:
- This unofficial reversal of the onus also places increased (albeit unintended) significance on the child’s instructions to counsel.
Interviews with legal counsel indicated that children can refuse a doli assessment (which, of course, they should be at liberty to
do). Participants reported that children refuse assessments without full comprehension of the consequences of their decision, or
because they know that an assessment will delay proceedings that they would like to resolve quickly. However, it cannot be overlooked
that, in such instances, the child forgoes a presumption that may be in their best interests. A child of an age legally presumed
to lack the capacity to understand serious wrongdoing should, by extension of that presumption, not be burdened with the obligation
to make a decision that could strip them of a legal safeguard to which they are entitled by virtue of their chronological age.
- While participants identified challenges with the fact that the defence bear the onus in practical terms, it is worth noting that
participants did not advocate that the onus revert to that prescribed by common law. Indeed, some participants identified risks with
the prosecution holding the onus:
- These views reveal an interesting nuance, which suggests that while the status quo is problematic in that it contradicts the process
required in accordance with the common law, the answer does not necessarily lie in better processes to ensure that the prosecution
carry out their burden. The possibility of shifting the onus of proof has been previously explored in Australian jurisdictions. For
example, in 1999 a bill introduced in Queensland Parliament proposed to reform the law such that the onus would be reversed and doli
incapax would operate as a defence rather than a presumption (see Criminal Code Amendment Bill, Queensland Parliament Hansard 1999:
3178–3179). While that bill was defeated and in the nearly 20 years since there has been no reform of the presumption in any
Australian jurisdiction, participants’ views illustrate the need to reconsider whether the presumption is operating as intended
or reform is required to ensure doli incapax operates effectively.
-
- The interviews revealed a dominant view that regional areas sorely lacked the specialist youth justice training and expertise evident
in the practice of the Melbourne Children’s Court. In areas where expertise of this kind is limited, participants identified
inconsistencies in the application of doli incapax. As described by one metropolitan advocate:
- Other participants commented that there are ‘inconsistent practices across the state’ (MetroDefenceA), ‘I’m
not sure always how well they [magistrates] understand’ (RegSupportJ) and that ‘a young person, depending on where they
appear, will get a different approach ... especially the further out you go in country Victoria’ (MetroCounselE). Not only
is such inconsistency in practice concerning from a procedural justice perspective, but it also belies the disadvantages faced by
young people in rural and regional areas who are likely to have access to fewer support services. One participant referred to this
as ‘postcode justice’, stating:
- Participants also identified a lack of expertise to undertake a doli incapax assessment in regional areas. This means that, even in
cases where the court recognises the need for a child to be assessed, there are difficulties in bringing that to fruition. As one
participant described:
- In practice, RegCounselF described that this can mean that young persons may have to be transported to metropolitan Melbourne for
their assessment, which can result in time spent away from school. Likewise, it can place additional strains on a young person’s
family who may be responsible for ensuring that children are taken to and from the city.
- For some participants this lack of specialisation and resources is exacerbated by the number of cases coming before regional courts
for which a doli incapax assessment could be undertaken. Between 2012–2013 and 2013–2014, the number of children and
young persons appearing before regional courts—such as Bairnsdale, Swan Hill, Colac and Wodonga—increased by between
nine and 64 per cent (Jesuit Social Services 2015). Here, the decline in the use of doli incapax is perceived to be a consequence
of increased pressures on the court, as one participant described:
- Acknowledgement of the compounding disadvantage experienced by youths in rural and regional areas underscores the need for better
resourcing of services and development of expertise in the circuit courts. The effective operation of safeguards such as the presumption
of doli incapax is particularly important in such areas, in that research has found that diversion strategies are less utilised and,
consequently, that young people are at risk of ‘repeated and extensive’ contact with the youth justice system (Overall
2016). An effective application of the presumption in these areas would provide an important mechanism for diverting children away
from the justice system prior to conviction or sanction.
- While the lack of specialisation in youth justice matters was largely identified as a regional issue, there was a small number of
participants who discussed the lack of expertise as a whole-of-systems problem. As one metropolitan practitioner explained:
- Other participants described the practice of doli incapax as ‘varied, really’, with one stating that ‘there’s
too much inconsistency’ (MetroCounselD). This was also noted in relation to police understandings of doli incapax, with legal
counsel commenting that, in their experience, doli incapax is not ‘properly understood by police’ (RegCounselF). A lack
of understanding of the presumption of doli incapax at the police level is problematic given the key ‘gatekeeping’ role
that police officers have in their interactions with young people. Arguably, were police better trained in identifying at the pre-charge
stage whether a child is doli incapax, children would be less likely to be unduly remanded and criminalised. While a detailed examination
of the role and responsibilities of police in youth justice is beyond the scope of this article, participants’ reflections
highlight the importance of specialisation in youth justice practices for all persons within the justice system, including police,
legal practitioners and judicial officers across metropolitan, rural and regional areas.
-
- Recognising the value of individualised assessments and the need for a holistic service response
- Participants were asked to reflect on the need for, and value of, individualised assessments in determining a child’s capacity.
For many participants, the answer to this question lay in the need to ensure a process that adequately recognises the multiple layers
of disadvantage often experienced by children in conflict with the law. As described by one participant:
- This excerpt highlights the importance of an individualised ‘doli’ assessment to ensure that a child’s actions are
contextualised and understood within the broader environment in which they live. For many participants, the need for an individualised
assessment to determine capacity is reinforced by the disadvantage and childhood trauma often experienced by children who come before
the law. This is particularly important in Australia, where research has revealed the high number of children who are in state care
when they come into conflict with the law (Australian Institute of Health and Welfare 2016), and where research attests to histories
of abuse, childhood trauma and disadvantage in children charged with a criminal offence (Fitz-Gibbon 2016; Richards 2011). The effect
that disadvantage and trauma has on a child’s cognitive development and moral capacities cannot be uniformly assumed and requires
a process by which an individualised response can be achieved. As explained by two participants:
- Participants’ recognition of the value of an individualised assessment process lends support to the conclusion of the ALRC (1997:
chap. 18) that, while the presumption ‘can be problematic for a number of reasons’, it is ‘a practical way of acknowledging
young people’s developing capacities. It allows for a gradual transition to full criminal responsibility’.
- However, while participants were supportive of the individualised assessment process through which doli incapax is determined, there
was an almost unanimous view that there is a lack of built-in service referrals for a child that is determined to be doli incapax.
As one judge explained:
-
- This participant offered that, while it is not being utilised as such in current practice, the process of establishing doli incapax
‘does provide an opportunity for some structured interventions to be put in place’ (MetroJudicialB). Other participants
similarly acknowledged the missed opportunities to provide a holistic response:
- These views reveal a pressing need to ensure that, during the period in which a child awaits assessment, supports are put in place
to understand and address the reasons why a child came before the law in the first place. As described by one participant, this ensures
that children do not ‘slip through’ the cracks of the system (RegConferencingB). These views support research by Weatherburn,
McGrath and Bartels (2012: 806), who found that ‘failure to intervene early [with rehabilitation programs for young offenders]
is likely to make intervention more difficult and less likely to be successful’ at a later stage. This is particularly important
given the level of disadvantage often experienced by children who come before the law. In such instances, not only does the criminal
justice process itself potentially exacerbate that disadvantage, but also the failure to address known disadvantage and to identify
the causes of antisocial behaviour may increase the likelihood that a child will reappear before the court in coming years. Any doli
incapax assessment should trigger a thorough, ecologically informed assessment of the needs of a child and their family, with non-stigmatising
welfare supports provided in instances where these will bolster one’s wellbeing, a child’s family and their immediate
community.
-
- Reflections on the need for reform
- Conclusion
- Correspondence:
- Dr Kate Fitz-Gibbon, School of Social Sciences, Faculty of Arts, Monash University. 20 Chancellor's Walk, Clayton VIC 3800, Australia.
Email: kate.fitzgibbon@monash.edu
- Dr Wendy O’Brien, School of Humanities and Social Sciences, Faculty of Arts and Education, Deakin University, Burwood Highway,
Melbourne VIC 3125, Australia. Email: wendy.obrien@deakin.edu.au
- References
-
- Cases
- C v DPP [1995] UKHL 15; [1995] 2 All ER 43
- Certain Children v Minister for Families and Children & Ors (No 2) [2017] VSC 241
- Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children & Ors [2016] VSC 796
- R v CRH (unreported, NSWSCA, 1996)
- R v Gorrie (1919) 83 JP 136
- RP v The Queen [2016] HCA 53
-
-
A Child’s Capacity to Commit Crime: Examining
the Operation of Doli Incapax in Victoria (Australia)
Kate Fitz-Gibbon
Monash University, Australia
Wendy O’Brien
Deakin University, Australia
Abstract
The rebuttable presumption of doli incapax
is available in all Australian states and territories and provides that, where a
child is unable to comprehend the distinction between
actions that are
‘seriously wrong’ and those that are ‘naughty or
mischievous’, they cannot be held criminally
responsible for their
actions. Despite the key role that doli incapax should play in diverting the
youngest offenders away from the
criminal justice system, its operation to date
has been largely unexamined. This article seeks to directly address this gap.
Drawing
on the experiences of those involved in all aspects of the youth justice
system, this article examines the need for, and the effectiveness
of, the
presumption of doli incapax in Victoria, Australia. Revealing inconsistencies in
the use of the presumption, the article
also examines the need for future reform
of this area of law.
Keywords
Child offenders; doli incapax; youth justice system; law
reform.
|
Please cite this article as:
Fitz-Gibbon K and O’Brien W (2019) A child’s capacity to
commit crime: Examining the operation of doli incapax in Victoria
(Australia). International Journal for Crime, Justice and Social
Democracy 8(1): 18-33. DOI: 10.5204/ijcjsd.v8i1.1047.
This work is licensed under a Creative Commons Attribution
4.0 International Licence. As an open access journal, articles are free to
use with proper attribution. ISSN: 2202-8005
Introduction
In recent
years, Australian criminal justice responses to children in conflict with the
law have been the subject of unprecedented
scrutiny. From the establishment of a
Royal Commission (2017) in response to harrowing images of children in
restraints in a Northern
Territory youth detention centre, to multiple Victorian
Supreme Court rulings against the imprisonment of children in adult prison
facilities,[1] an increasing awareness
of the dangers of children’s interaction with the criminal justice system
has highlighted the importance
of legal safeguards for those in conflict with
the law. National attention to the treatment of children in detention has
contributed
to mounting recognition that correctional facilities are poorly
suited for children, and that children should be diverted from the
criminal
justice system at the earliest possible
stage.
One key way that
diversion of very young children can be achieved in Australian law is through
the operation of the presumption of
doli incapax. Doli incapax, which
translates from Latin into ‘incapable of committing an evil act’
(Arthur 2010: 43), operates as
a rebuttable presumption by which children
between the ages of 10 and 13 are presumed to be incapable of understanding the
difference
between naughty behaviour and criminal acts that are ‘seriously
wrong’. The presumption is available in all Australian
states and
territories and provides that, where a child is unable to comprehend this
distinction, they should not be held criminally
responsible for their actions.
Despite the key role that doli incapax should play in diverting the youngest
offenders away from the
criminal justice system, its operation to date has been
largely unexamined.
This
article seeks to directly address this gap in current understandings in five
parts. First, it sets out the legal justification
and test for the presumption
of doli incapax in Australia, and next provides an overview of the qualitative
study that informs the
analysis in this article. Third, it critically examines
the process of determining doli incapax from the perspective of those
involved in the Victorian youth justice system, with attention to the reversal
of the onus of proof, the realities of legal practice in regional areas, as well
as the effect of the length of time that it takes
to determine if a child is
doli incapax. Building on this analysis, this article next examines the value of
individualised assessments
and the need for a holistic service response;
finally, it explores practitioners’ views on future needs for reform. The
article
concludes by calling for enhanced legal protections for very young
children in conflict with the law in
Victoria.
The presumption
of doli incapax in Australia
The
rebuttable presumption of doli incapax applies to all children aged 10 to 13
years at the time an alleged offence is committed.
Derived from the longstanding
principle of English common law, the presumption was designed to provide a legal
safeguard to protect
children from ‘suffering the full extent of the
law’ (Arthur 2010: 45). Its operation is well captured in the following
English case law:
At common law a child under 14 years is presumed not to have reached the age of
discretion and to be doli incapax; but this presumption may be
rebutted ... Between 10 and 14 years a child is presumed not to know the
difference between right and
wrong and therefore to be incapable of committing a
crime because of lack of mens rea. (C v DPP [1995] UKHL 15; [1995] 2 All ER 43,
per Lowry L at 48)
An important feature of doli
incapax is the ‘rebuttable presumption’, which places the onus of
proof with the prosecution.
The test for rebutting doli incapax is established
in Australian case law:
1. that the prosecution must rebut the presumption as an
element of their case
2. that the prosecution must
demonstrate that the child knew ‘the act was seriously wrong as opposed to
naughty’
3. that the evidence relied upon by
the prosecution ‘must be strong and clear beyond all doubt or
contradiction’
4. that the evidence to prove
‘the accused’s guilty knowledge, as defined above, must not be the
mere proof of doing the
act charged, however horrifying or obviously wrong the
act may be’
5. that the ‘older the child
is the easier it will be for the prosecution to prove guilt or knowledge’.
(R v CRH unreported NSWSCA 1996, per Hidden and Newman JJ)
Where the prosecution seeks to rebut the presumption,
evidence produced may include a psychological assessment of the child; a police
interview transcript or recording; the child’s prior criminal history;
evidence given by parents, teachers, psychologists or
psychiatrists; as well as
evidence of the child’s behaviour before and after the alleged criminal
act (Johnson and Chambers
2006; see also RP v The Queen [2016] at
9).
The threshold for determining ‘seriously
wrong’ is well established in English and Australian case law, whereby the
courts
have stated:
it is not enough that the child realised that what he or she was doing was
naughty or mischievous. It must go beyond childish things
of that kind ... It
would not be right for a child under that age to be convicted of a crime, even
if they had committed the relevant
actus reas and had the relevant
mens rea specified in the statute, unless they appreciated that what they
were doing was seriously wrong. (R v Gorrie [1919] 83 JP 136, per Goff LJ
at 260)
The presumption is designed to recognise the differences
in maturity between adult and child offenders, and the fact that very young
children lack the capacity to understand the implications of their actions.
Doli incapax is available in every Australian state and
territory. In Tasmania, Western Australia, Queensland, the Australian Capital
Territory and the Northern Territory it has been enacted in legislation, while
in New South Wales, South Australia and Victoria it
is based on common law
(Australian Law Reform Commission [ALRC] 1997). While the presumption animated a
degree of debate in England
and Wales prior to its abolition in 1998 (Home
Office 1997), in Australia doli incapax has been the subject of very limited
scholarly
analysis and political debate. As a result, little is known about its
operation and the extent to which it effectively delivers upon
its aim of
protecting very young children from criminal liability. This lack of empirical
research on the topic is further hampered
given neither the Children’s
Court nor any independent monitoring body produces annual statistics on the
number of cases in
Victoria in which a child is found to be doli incapax. There
are also no publicly available records on the number of cases in which
the
presumption is raised but rebutted successfully by the
prosecution.
Research
design
This article draws on the findings of a wider qualitative research project
examining legal responses to children in conflict with
the law in Victoria. In
2016, 48 semi-structured interviews were conducted to gain insight into the
views and experiences of those
involved in the operation of the Victorian youth
justice system.[2] Participants
included persons with experience working to support children in conflict with
the law, those practicing in the specialist
Children’s Court division and
legal practitioners with experience in cases where the presumption of doli
incapax was considered.
Participants were asked about their views on the
operation of doli incapax, their experience in cases in which the presumption
was
raised, the strengths and limitations of its operation, and areas in need of
reform.
Participants for the 48 interviews comprised various professional roles
including:
1. judicial officers (with experience in the Children’s Court)
2. legal counsel (with defence and prosecutorial experience, including
members of the Victorian Bar, Office of Public Prosecutions
and Victoria Legal
Aid)
3. support service personnel (including Victorian Department of Health and
Human Services staff)
4. youth conferencing practitioners
5. children’s advocates.
Recognising that there may be differences in professional views across
geographical areas, interviews were conducted in metropolitan
Melbourne
(n = 26), Ballarat (n = 10), Shepparton (n = 6),
Geelong (n = 2) and other regional areas, including Gippsland and
Warrnambool
(n = 4). Some participants had specific expertise working
with diverse youth communities, including young people with a disability
and
Indigenous youth. While this study does include the views of those working with
Indigenous children—and our findings highlight
several deficiencies in
criminal law responses to Indigenous children—given the significant
over-representation of Indigenous
young persons at all stages of the justice
system, there is a need for further research that engages specifically with
issues unique
to this context.
With the exception of one
interview,[3] all interviews were
audiotaped and transcribed verbatim, with the transcripts uploaded into NVivo
software for thematic analysis.
All participants were assigned a pseudonym to
ensure their anonymity, which were allocated according to the locality and
professional
role of the participant followed by a randomly assigned letter of
the alphabet to allow for differentiation between participants
(e.g.,
MetroAdvocateA, RegSupportB, RegCounselC, MetroJudicialA).
The value of using interviews with legal practitioners to gain an in-depth
understanding of the operation of the criminal justice
system is well recognised
(see, inter alia, Fleming 2011; McBarnet 2009). As described by McBarnet (2009:
152), interviewing also
allows one to discover worlds that may forever be closed
to direct observation, permitting one to hear people, report their perspectives
and describe their behaviours.
McBarnet’s recognition of the value of using interviews to gain
insights into ‘hidden’ justice processes is particularly
relevant
here given that, in Victoria specifically and Australia more broadly, there is a
dearth of empirical research on the presumption
of doli incapax. In light of the
critical role that this presumption should play in diverting young
offenders away from the criminal justice system, there is a need to better
understand the effectiveness of
processes used to determine whether a child is
doli incapax.
The process of determining doli
incapax
The interviews revealed general
support for the availability of the presumption, with participants describing
doli incapax as ‘incredibly
valuable’ (RegCounselF), ‘really
useful’ (RegCounselD), ‘imperative to have’
(RegConferencingB), ‘an
invaluable mechanism’ (RegCounselA) and
‘a really important area’ of law (MetroCounselE). However, despite
its
recognised benefits, there was a general view among those interviewed that
the presumption has been falling into disuse in Victoria
in recent years and
that, where used, it is done so in an ad hoc and procedurally questionable
way.
Several participants attributed inconsistencies in
practice to the complexities present in the process of rebutting the presumption
or proving that a child is doli incapax. Participants described it as
‘very confusing’ (MetroDefenceA), ‘a bit
convoluted’
(MetroCounselF), ‘impractical’ (MetroCounselC) and as a ‘very
challenging and complex area ...
[that] we still don’t always get it
right’ (MetroCounselE). Building on this view, one legal counsel noted,
‘I
think sometimes doli incapax makes it a bit complicated, because even
the language and trying to explain that to a young person can
be quite
confusing’ (MetroDefenceA).
Reflecting this complexity, many participants discussed
the ad hoc implementation and operation of doli incapax in practice. These
views
are examined in more detail in the following sections, with particular focus on
the practical operation of the burden of proof,
the realities of rural and
regional practice, and the lack of built-in service
responses.
The reverse
onus
One of the key features of the
presumption of doli incapax is that it locates the onus of proof with the
prosecution, as recently
affirmed by the High Court of Australia:
The appellant is presumed in law to be incapable of bearing criminal
responsibility for his acts. The onus was upon the prosecution
to adduce
evidence to rebut that presumption to the criminal standard. (RP v The
Queen at 32)
Despite this, interviews revealed a common view that,
in Victorian practice, the onus is more commonly located with the defence, who
bear the unofficial burden of providing a report (at their cost) to prove that
the defendant is doli incapax. As one participant
explained:
you may as well not call it a presumption frankly because the way it works in
the Children’s Court here is that you have to
raise it, as in the defence
has to raise it, the defence has to commission or produce a report confirming
it, and then the defence
has to argue that it applies sometimes right through to
contests. So you can’t just say the presumption applies ... You have
to do
all the groundwork of getting that defence up and going. It may as well be a
defence, not a presumption ... because that’s
how it operates in practice.
(MetroCounselF)
Demonstrating that this viewpoint is neither unique to
one participant’s experience nor to metropolitan practice, a regional
participant described an identical trend:
In practice it seems to be defence getting reports and trying to make the
argument that—so it’s sort of like we’re
proving that they
don’t understand that something was seriously wrong as opposed to police
proving that they did ... I just
don’t think it’s what the system
envisaged when the legislation was written. (RegCounselG)
Other participants similarly commented that in practice
the onus being placed on the prosecution ‘doesn’t happen’
(MetroCounselE), ‘is never happening in practice’ (MetroDefenceA)
and that ‘it becomes sort of a reverse onus’
(MetroCounselG). This
unofficial reversal of the onus means that the burden of costs for forensic
assessments falls to the defence
or the Children’s Court Clinic (located
in metropolitan Melbourne). One participant described this as placing
‘significant
pressure on the defence’ (RegCounselA), while another
recognised the resource pressures facing the Children’s Court Clinic.
Some
participants indicated that without such resources access to and the quality of
such assessments could be jeopardised:
It’s quite hard to get good reports. Partly that may be because Legal Aid
only pays a certain rate and most of the kids’
court cases for this age
group are legally aided. So there have been criticisms, and I would see that
myself, in the quality of some
of the reports, the amount of work that is done
beforehand, but that may be reflected in the fee structure ... Some of them
[reports]
are a little bit more superficial and they just do an assessment of
the child and it’s like, yeah, they’re doli or they’re
not
doli, or whatever. So it’s not good. (MetroCounselF)
This unofficial reversal of the onus also places
increased (albeit unintended) significance on the child’s instructions to
counsel.
Interviews with legal counsel indicated that children can refuse a doli
assessment (which, of course, they should be at liberty to
do). Participants
reported that children refuse assessments without full comprehension of the
consequences of their decision, or
because they know that an assessment will
delay proceedings that they would like to resolve quickly. However, it cannot be
overlooked
that, in such instances, the child forgoes a presumption that may be
in their best interests. A child of an age legally presumed
to lack the capacity
to understand serious wrongdoing should, by extension of that presumption, not
be burdened with the obligation
to make a decision that could strip them of a
legal safeguard to which they are entitled by virtue of their chronological
age.
While participants identified challenges with the fact
that the defence bear the onus in practical terms, it is worth noting that
participants did not advocate that the onus revert to that prescribed by common
law. Indeed, some participants identified risks with
the prosecution holding the
onus:
You wouldn’t necessarily want the prosecution to have control of that
assessment process because you’d have to be very
careful about who they
were getting an assessment from and all of that. So I’m not saying
it’s fixable. (MetroCounselF)
The legal burden very clearly states it’s the prosecution’s
presumption, but I’ve never encountered and nor do
I think there has been
any matters that I’m aware of where prosecutors have actively arranged to
have an assessment done or
tried to rebut that in practice. It’s always
defence practitioners who raise it and then pay and conduct the report ... By
no
means in practice has that presumption been followed ... I think it’s good
in theory that it’s their [the prosecution’s]
burden but it would
sit uncomfortably with me if ultimately they were the ones that facilitated all
these types of assessments. (MetroDefenceA)
These views reveal an interesting nuance, which
suggests that while the status quo is problematic in that it contradicts the
process
required in accordance with the common law, the answer does not
necessarily lie in better processes to ensure that the prosecution
carry out
their burden. The possibility of shifting the onus of proof has been previously
explored in Australian jurisdictions. For
example, in 1999 a bill introduced in
Queensland Parliament proposed to reform the law such that the onus would be
reversed and doli
incapax would operate as a defence rather than a presumption
(see Criminal Code Amendment Bill, Queensland Parliament Hansard
1999: 3178–3179). While that bill was defeated and in the nearly 20 years
since there has been
no reform of the presumption in any Australian
jurisdiction, participants’ views illustrate the need to reconsider
whether
the presumption is operating as intended or reform is required to ensure
doli incapax operates effectively.
The realities of
regional practice
The interviews revealed a dominant view that regional
areas sorely lacked the specialist youth justice training and expertise evident
in the practice of the Melbourne Children’s Court. In areas where
expertise of this kind is limited, participants identified
inconsistencies in
the application of doli incapax. As described by one metropolitan advocate:
if you’re in the Children’s Court in Melbourne, for example, I think
the magistrates are well trained in the needs of
children. They’ll
immediately turn their mind to that issue of doli incapax, and so there is some
degree of safeguard there.
But there’s so many places where it’s
just the ordinary court lists, adults and children ... The training and the
mentality
and the dynamics kind of start from an assumption of this person is an
offender, or is before the court for a reason and is fully
aware of what
they’re doing and in full command of their faculties and their sense of
responsibility, even if they’re
10 years old. I feel like a lot of
magistrates I’ve tried to tease out those issues with have not really even
engaged with
the question. (MetroAdvocateD)
Other participants commented that there are
‘inconsistent practices across the state’ (MetroDefenceA),
‘I’m
not sure always how well they [magistrates] understand’
(RegSupportJ) and that ‘a young person, depending on where they
appear,
will get a different approach ... especially the further out you go in country
Victoria’ (MetroCounselE). Not only
is such inconsistency in practice
concerning from a procedural justice perspective, but it also belies the
disadvantages faced by
young people in rural and regional areas who are likely
to have access to fewer support services. One participant referred to this
as
‘postcode justice’, stating:
it’s all good and well for Melbourne practitioners to have specialised
children’s crime lawyers who that’s all
they do. But the reality in
the country is my practice involved adult crime, children’s crime, child
protection, a little bit
of family law and a whole range of civil stuff ... Doli
[incapax] was very rarely raised in regional practice ... You know kids in
the
country areas are not getting the same criminal law treatment and opportunities
as kids in the city. (RegCounselE)
Participants also identified a lack of expertise to
undertake a doli incapax assessment in regional areas. This means that, even in
cases where the court recognises the need for a child to be assessed, there are
difficulties in bringing that to fruition. As one
participant described:
I think the regional [and] rural areas really suffer—and it’s a
funding issue ... It’s just a really difficult
thing to get funding to do
proper assessments ... I’ve seen the quality of some of those reports and
assessments and they are
appalling. (MetroSupportF)
In practice, RegCounselF described that this can mean
that young persons may have to be transported to metropolitan Melbourne for
their assessment, which can result in time spent away from school. Likewise, it
can place additional strains on a young person’s
family who may be
responsible for ensuring that children are taken to and from the city.
For some participants this lack of specialisation and
resources is exacerbated by the number of cases coming before regional courts
for which a doli incapax assessment could be undertaken. Between 2012–2013
and 2013–2014, the number of children and
young persons appearing before
regional courts—such as Bairnsdale, Swan Hill, Colac and
Wodonga—increased by between
nine and 64 per cent (Jesuit Social Services
2015). Here, the decline in the use of doli incapax is perceived to be a
consequence
of increased pressures on the court, as one participant
described:
We hear lots of cases—for example, a 10-year-old being dragged before the
court for sneaking into a film and charges going
ahead as a matter of course
rather than there being any real consideration of doli incapax. Too often with
those under-resourced
lawyers, particularly in circuit courts where
there’s huge lists and have magistrates visiting for a day or something, I
don’t
think it’s adequately even considered. I don’t think it
necessarily even crosses the minds of some of the lawyers who
are completely
swamped to raise it. So I think it’s one of those issues that compounds
disadvantage. (MetroAdvocateD)
Acknowledgement of the compounding disadvantage
experienced by youths in rural and regional areas underscores the need for
better
resourcing of services and development of expertise in the circuit
courts. The effective operation of safeguards such as the presumption
of doli
incapax is particularly important in such areas, in that research has found that
diversion strategies are less utilised and,
consequently, that young people are
at risk of ‘repeated and extensive’ contact with the youth justice
system (Overall
2016). An effective application of the presumption in these
areas would provide an important mechanism for diverting children away
from the
justice system prior to conviction or sanction.
While the lack of specialisation in youth justice
matters was largely identified as a regional issue, there was a small number of
participants who discussed the lack of expertise as a whole-of-systems problem.
As one metropolitan practitioner explained:
what we’re finding on the ground is because there isn’t a specialist
children’s prosecution division of Victoria
Police that the interpretation
and understanding of doli incapax is actually quite limited ... More often than
not every time we
are presenting a doli incapax report and saying the charges
should be withdrawn because they don’t have the capacity, many
[police]
prosecutors either are confronted with it, not sure what to do with it, never
heard of it or just say, okay, well, we need
to adjourn the case so I can talk
to my sergeant; it’s all too hard. So I think that that is one of the main
barriers ... The
prosecutors probably need to be specialised and also
extensively trained in what it actually is. (MetroDefenceA)
Other participants described the practice of doli
incapax as ‘varied, really’, with one stating that
‘there’s
too much inconsistency’ (MetroCounselD). This was
also noted in relation to police understandings of doli incapax, with legal
counsel commenting that, in their experience, doli incapax is not
‘properly understood by police’ (RegCounselF). A lack
of
understanding of the presumption of doli incapax at the police level is
problematic given the key ‘gatekeeping’ role
that police officers
have in their interactions with young people. Arguably, were police better
trained in identifying at the pre-charge
stage whether a child is doli incapax,
children would be less likely to be unduly remanded and criminalised. While a
detailed examination
of the role and responsibilities of police in youth justice
is beyond the scope of this article, participants’ reflections
highlight
the importance of specialisation in youth justice practices for all persons
within the justice system, including police,
legal practitioners and judicial
officers across metropolitan, rural and regional areas.
Prolonging involvement with the criminal
justice system
One of the other central concerns raised by practitioners pertained to the
means by which doli incapax prolongs a child’s involvement
with the
criminal justice system. This critique is captured in the following interview
excerpt:
While on paper it looks like there’s some level of safeguard there,
there’s a whole lot of kids that are being held on
remand before those
questions have even been answered. So that’s the other really big issue.
You can be charged as a 10 year
old and may not ultimately be found guilty ...
So in those circumstances it doesn’t even necessarily matter whether doli
incapax
applies because they might not have really got to those questions before
someone’s being held in remand, possibly, or being
held in police watch
houses, having been charged. So the damage has already been done.
(MetroAdvocateD)
Reflecting on the same prolonged processes, another participant commented
that ‘it becomes a very long, drawn-out process. So
I wonder if
there’s better ways to get around it’ (RegCounselA).
There are several problems identified here that bring into question the
efficacy of the presumption. Particularly problematic is the
practice of holding
children on remand prior to doli incapax assessments being conducted (as
identified above by MetroAdvocateD).
This is concerning in light of the body of
Australian research that documents the adverse effects experienced by children
on remand,
including separation from family and community, disruption to
education, the negative effects of associations with sentenced young
offenders
and lack of access to therapeutic programs (Richards and Renshaw 2013). These
recognised effects are heightened in the
current climate, in which several
recent incidents in Victoria (as well as in other states and territories) have
revealed the dangers
that children face in such environments (e.g., Edwards
2016). Indeed, in 2015 in response to the growing number of children on remand
in Victoria, the then Commissioner for Children and Young People, Bernie Geary
(cited in Miletic 2015), described custodial remand
for children as ‘the
beginning of the end’. For a safeguard like doli incapax to be truly
effective, it must ensure that
children who are ‘doli’ are
identified and assessed prior to being put on remand to prevent the
disadvantage associated with this point of contact with the justice system. To
undertake a determination
of doli incapax following remand largely defeats the
purposes for which the safeguard is intended.
This is not to suggest that delays in the assessment process are only
problematic for children in the pre-trial stage. Equally, participants
identified that when an assessment is contested the prolonged nature of the
subsequent court processes are contrary to the aims of
the safeguard. As one
participant described:
when you go down the path of getting doli incapax assessments and things like
that, the difficulty is, arguably, we’re dragging
kids to court and
through assessment practices, and they just don’t quite understand what
the court’s about. (RegCounselG)
By prolonging a child’s involvement with the criminal justice system
the operation of the presumption of doli incapax can be
psychologically and
criminogenically stigmatising, in turn. While the presumption is in itself
designed to remove children who lack
the necessary capacity from the justice
system, for this to be an effective safeguard such a response must occur at the
earliest
point and without requiring the child to spend prolonged periods of
time within the bounds of criminogenic justice system institutions.
Interestingly, one participant described how prolonged court processes can
affect the outcome of the doli incapax assessment itself:
There are times when a young child comes into the criminal justice [system] and
they become educated whilst they’re being charged
and, unfortunately,
sometimes by the time that the assessment is done, if the case goes on for a
long time and comes backwards and
forwards to court, I feel that by the time the
assessment occurs they’re educated in a way that possibly isn’t a
fair
assessment because they understand more having been in the court system and
having been bounced around, having had conversations
with police and other
people, their lawyers ... So if the case takes a while to come to court and goes
through several stages and
adjournments, possibly the doli incapax doesn’t
protect them in the same way. (RegSupportN)
This reflection highlights how prolonged processes can influence the
integrity of the assessment and the extent to which doli incapax
will
effectively identify and remove young children who lacked capacity at the time
of their offending from the justice process.
This reanimates concerns raised in
a 1999 New South Wales case in which a judge rejected an assessment on the basis
that it had been
conducted 19 months after an alleged incident. Recognising that
time undermined the assessment’s validity, and that court processes
imposed adverse effects on young children, the judge ruled:
in that period not only had the accused grown older but much more importantly he
had undergone very unhappy experiences resulting
from the death of the deceased.
He had experienced threats from those who obviously believed he was responsible
for what had occurred,
he had undergone the ordeal of proceedings in the
Children’s Court and he had been subject to much attention by the media.
(R v LMW [1999] NSWSC 1342, para 11, cited in Crofts
2016)
Several participants identified that prolonged processes associated with the
presumption highlight an inherent tension between a child
defendant’s
instructions and their own view, as legal counsel, that an assessment of doli
incapax is in a child’s best
interests. Practitioners explained that, in
some cases, young clients seek the fastest outcome, regardless of whether that
results
in a conviction or sanction. As one participant explained:
what does tend to happen in practice is that we will get an expert report, which
talks about capacity ... then there’s also
the fact that, more often than
not, that still doesn’t satisfy [the] prosecution and the matter might
need to go to contest
... But the other issue is that you need to take a young
person with you and you’re acting on instructions. These are young,
vulnerable clients, particularly young in the case of doli incapax; they might
not be interested in going to contest: they want their
matters dealt with. So
we’ve got all of these different challenges that we need to try and
navigate. (MetroCounselE)
This reflection highlights important issues surrounding the protection of
children before the law, including the difficulty of ensuring
the best interests
of a child, and the (often) competing need to ensure that child can exercise
their agency. It is important to
recognise that children ultimately found to be
‘doli’ cannot be expected to fully understand and meaningfully
engage
with court processes. While it may be argued that this is exactly why the
presumption removes such children from the justice process,
this is not an
adequate solution given the findings of this research, which reveal that
children are first brought within the bounds
of the court system (in some cases
for prolonged periods of time) prior to the outcome of a doli incapax
assessment.
Recognising the value of individualised assessments
and the need for a holistic service
response
Participants were asked to reflect on
the need for, and value of, individualised assessments in determining a
child’s capacity.
For many participants, the answer to this question lay
in the need to ensure a process that adequately recognises the multiple layers
of disadvantage often experienced by children in conflict with the law. As
described by one participant:
the amount of children I’ve had who have come from extremely impoverished
... backgrounds—many of them raised in state
care, who end up being
charged with criminal offences that have occurred in state care—and they
won’t understand that
they’re not allowed to punch a hole in their
wall, and that they get charged with criminal damage, yet another kid who lives
with their parents is made to plaster it up. I think that there are different
approaches to different situations, and I don’t
think that it’s
appropriate when you might get one psychologist who says, ‘well, no, they
understand that it’s
wrong to break a wall, therefore, they can be
charged’, and the reality is that, well, why should they be, for starters?
What
good does it serve society to criminalise them? And second, there is a
difference between understanding something might be naughty
or wrong and having
a serious criminal element and understanding [of] what criminality is.
(MetroCounselC)
This excerpt highlights the importance of an
individualised ‘doli’ assessment to ensure that a child’s
actions are
contextualised and understood within the broader environment in
which they live. For many participants, the need for an individualised
assessment to determine capacity is reinforced by the disadvantage and childhood
trauma often experienced by children who come before
the law. This is
particularly important in Australia, where research has revealed the high number
of children who are in state care
when they come into conflict with the law
(Australian Institute of Health and Welfare 2016), and where research attests to
histories
of abuse, childhood trauma and disadvantage in children charged with a
criminal offence (Fitz-Gibbon 2016; Richards 2011). The effect
that disadvantage
and trauma has on a child’s cognitive development and moral capacities
cannot be uniformly assumed and requires
a process by which an individualised
response can be achieved. As explained by two participants:
it’s a grey area because you can have a 13 year old that’s
extraordinarily articulate. ... However, to take that as the
norm—and we
understand that young people who are involved in the criminal justice system at
14 and below, and the backgrounds
that you can assume that they’ve come
from—that level of articulation in the main doesn’t exist. So we
have to
potentially deal with those young people differently.
(MetroConferencingB)
we represent some of the most vulnerable kids; they’re really damaged, and
we need to think very carefully about a child, for
example, who’s in
residential care or the child protection system. Why are they there? What that
means in terms of their understanding,
especially the younger you go down that
age curve, if you like. (MetroCounselD)
Participants’ recognition of the value of an
individualised assessment process lends support to the conclusion of the ALRC
(1997:
chap. 18) that, while the presumption ‘can be problematic for a
number of reasons’, it is ‘a practical way of acknowledging
young
people’s developing capacities. It allows for a gradual transition to full
criminal responsibility’.
However, while participants were supportive of the
individualised assessment process through which doli incapax is determined,
there
was an almost unanimous view that there is a lack of built-in service
referrals for a child that is determined to be doli incapax.
As one judge
explained:
where you have a young person, particularly a very
young person between the ages of 10 and, say, 13 who are engaging in behaviours
that would be classified as criminal, wherever you sit in terms of at what point
in that age trajectory responsibility should rest
for them to be brought before
a court, what seems critically important to me is that, even at a young age,
those children are receiving
assistance with their behaviours. Because I have
experienced cases, and one recent matter comes to mind, where a young person was
charged, over the age of 10, obviously, with serious offending involving
sexualised behaviours. And not once but twice that young
person was found doli
incapax and that ended the matter, but no additional supports were put in place
to address the behaviours that
have brought that young person to court ... It
seemed somewhat inevitable, really, when they ultimately came back before the
court
then as a 15, 16 year old with similar offending of a similar nature, and
particularly serious. Nothing had been put in place.
(MetroJudicialB)
This participant offered that, while it is not being
utilised as such in current practice, the process of establishing doli incapax
‘does provide an opportunity for some structured interventions to be put
in place’ (MetroJudicialB). Other participants
similarly acknowledged the
missed opportunities to provide a holistic response:
There’s always that concern with some people that if a kid is found to be
doli incapax there’s no sort of follow-up.
There might be ongoing issues
in that child’s life, which means in another few months or another year
they’ll probably
be back before the courts. So treating it as, I guess,
undesirable behaviour that needs to be modified through support and help might
be a more effective way. (RegCounselE)
It [doli incapax] didn’t lead anywhere apart from no criminal justice
response ... I’m really opposed to just saying,
‘well, no criminal
justice response until 14, but let’s not worry about anything else’.
(MetroSupportI)
These views reveal a pressing need to ensure that,
during the period in which a child awaits assessment, supports are put in place
to understand and address the reasons why a child came before the law in the
first place. As described by one participant, this ensures
that children do not
‘slip through’ the cracks of the system (RegConferencingB). These
views support research by Weatherburn,
McGrath and Bartels (2012: 806), who
found that ‘failure to intervene early [with rehabilitation programs for
young offenders]
is likely to make intervention more difficult and less likely
to be successful’ at a later stage. This is particularly important
given
the level of disadvantage often experienced by children who come before the law.
In such instances, not only does the criminal
justice process itself potentially
exacerbate that disadvantage, but also the failure to address known disadvantage
and to identify
the causes of antisocial behaviour may increase the likelihood
that a child will reappear before the court in coming years. Any doli
incapax
assessment should trigger a thorough, ecologically informed assessment of the
needs of a child and their family, with non-stigmatising
welfare supports
provided in instances where these will bolster one’s wellbeing, a
child’s family and their immediate
community.
Reflections
on the need for reform
Several practitioners sought that the prescribed age range be supplanted by
the application of doli incapax to all children charged
with a criminal offence.
The potential of such reform is captured in one participant’s
comments:
In theory it makes a lot of sense to make it variable depending on the capacity
because I think there is no birthdate that applies
across all children at which
they become mature enough to understand the impact of their actions and the
context and the environment
in which they are acting ... My worry about that in
practice is I think there would be so much assessment involved I’d worry
that there would be a default to the minimum again ... We’d need to make
sure that really well-qualified people were involved
in doing the assessments so
that it wasn’t left—with all respect to my legal
colleagues—that it wasn’t left
to the lawyers and judicial offenders
to make those assessments. (MetroAdvocateB)
Participants also acknowledged the fluidity of a child’s maturity,
arguing that to set a determinative range fails to acknowledge
the developmental
differences that influence a child’s capacity to understand the
distinction between right and wrong. Two
regional support workers noted that
removing the set age range would be particularly beneficial in responding to
cases involving
a child with an intellectual or cognitive disability:
If you’re talking about issues relating to disability or cognitive
capacity it varies so much for young people, depending on
experience and
circumstances, and I think that a set age can be an issue as well. I think
there’s certainly room for individualised
assessments around that.
(RegSupportL)
I’ve worked with some 18 year olds who present as 12 or 13 and would not
have the capacity to know the consequences of their
actions, just because
they’re intellectually impaired and they’re really vulnerable to
being led by their peers ... [If
the age were to be raised] I think it would
definitely need to be assessed case by case. (RegSupportD)
The merit of extending the protection to all children in conflict with
the law was recognised by the English Law Commission (2005), which found that
there is a need for children,
of all ages, to be better catered for under the
criminal law. This same argument can be applied in Australia, where the
applicability
of the presumption leaves children aged between 14 and 18
vulnerable to the full force of the criminal law. The strict upper age
limit for
doli incapax belies the common disjuncture between a child’s chronological
age and their developmental maturity.
In instances in which children have
endured childhood trauma or for children with a neuro-disability, for example,
chronological
maturity does not necessarily guarantee a child’s capacity
to understand the difference between wrong and seriously wrong.
Participants were also asked for their views on the abolition of the
presumption of doli incapax in England and Wales in 1998, a reform
that
formalised the age of 10 as the minimum age of criminal responsibility (Crime
and Disorder Act 1998 (UK) s. 34). The English reforms were implemented
following the Home Office (1997: para. 4.4; see also Bandalli 1998) consultation
paper, which described the presumption as ‘contrary to common sense’
and noted that its operation was ‘not in the
interests of justice, or
victims or of the young people themselves’. These reforms stand England
and Wales apart from other
common law jurisdictions that have increased the
minimum age of criminal responsibility (MACR) at the time of abolishing the
presumption
of doli incapax (e.g., Canada) (Crofts 2016).
Given participants’ recognition of the limitations of the presumption
as it is currently operationalised, this research sought
to determine whether
Victorian youth justice practitioners believed the presumption had outlived its
purpose. The answer was a resounding
no. Participants described any prospect of
the abolition of doli incapax as ‘really problematic’
(MetroAdvocateD) and
‘less than ideal’ (MetroSupportC). Other
participants commented that they ‘don’t want to go down the path
of
England’ (MetroCounselE), that they ‘would be very concerned’
(MetroDefenceA) if similar reforms were introduced,
that they ‘would not
want to see it go ... definitely not, definitely not’ (MetroSupportF) and
that they were ‘very
concerned, alarmed’ by the English approach
(RegCounselA). Explaining these responses, one legal counsel reflected,
‘if
children aren’t protected against the unlimited power of the
state, what hope have they got?’ (RegCounselA); another
observed that
‘it’s definitely important to have that safeguard ... it’s
better to have it than not’ (MetroSupportC).
Several participants recognised that while the presumption is problematic in
practice, abolition of this safeguard would leave children
more vulnerable to
convictions, incarceration and prolonged criminalisation. As one participant
explained:
I don’t think I’d be in favour of [it] being abolished without broad
reform ... it’s one piece of an imperfect
system. If we were going to
abolish it, we would have to be moving towards a broad-based treatment system
that was legislated with
a number of legislative protections ... [We have] such
a young age for criminal responsibility that I’m not open to just
abolishing
willy-nilly. (MetroSupportI)
These views largely mirror those expressed in the wake of the abolition of
doli incapax in England and Wales, where legal scholars
and stakeholders heavily
criticised the government’s reforms (Arthur 2010; Goldson 2013).
Conclusion
I think it’s like a lot of legal principles or arguments that in theory
work to the favour of people; it relies too much on
the system working well and
everyone involved being adequately represented and having equal resources.
(MetroAdvocateD)
As captured by MetroAdvocateD, the presumption of doli incapax is, in theory,
a meritorious legal safeguard that seeks to provide
an individualised protection
that allows for differences in the cognitive development and maturity of
children who come into conflict
with the law. This study reveals that, in
practice, the presumption falls far short of achieving this laudable aim. An
insight into
the daily operation of doli incapax provided by practitioners
involved in all aspects of the Victorian youth justice system reveals
shared
concerns about the process by which the presumption is rebutted,
including an informal reversing of the onus in practice, the inconsistency of
its application,
and a concern that the process itself is prolonged and unduly
criminogenic.
This research also documents views on the needs for reform, including the
dangers of abolition, the merits of expanding the age range
for which doli
incapax applies, alongside the importance of specialised training for criminal
justice professionals (particularly
in regional areas) to ensure full
understanding of the importance of the presumption as a legal safeguard. The
interviews emphasise
the importance of a holistic approach to reforming doli
incapax, in concert with calls for wider reform to both the child protection
and
youth justice systems in Victoria, including a review of the MACR (see further
O’Brien and Fitz-Gibbon 2017), and increased
welfare supports for
vulnerable children and their families. To this end, this article urges caution
in the face of an increasingly
punitive youth justice system in Victoria. While
doli incapax has recognised limitations, it offers the strengths associated with
individualised justice and has great potential as a mechanism through which the
disadvantage and trauma often experienced by children
in conflict with the law
can be meaningfully considered. Interviews with Victorian legal stakeholders
show that abolition of this
safeguard would find no support among those working
daily with children in conflict with the law. As Bandalli (1998: 114) argued
nearly two decades ago in England and Wales, the presumption ‘should be
retained and taken seriously as recognition of the
protection which the law
should be affording to children’.
Correspondence:
Dr
Kate Fitz-Gibbon, School of Social Sciences, Faculty of Arts, Monash University.
20 Chancellor's Walk, Clayton VIC 3800, Australia. Email:
kate.fitzgibbon@monash.edu
Dr Wendy O’Brien,
School of Humanities and Social Sciences, Faculty of Arts and Education, Deakin
University, Burwood Highway,
Melbourne VIC 3125, Australia. Email:
wendy.obrien@deakin.edu.au
References
Arthur R (2010) The age of criminal responsibility and the defence of doli
incapax. In Arthur R (ed.) Young Offenders and the Law: How the Law
Responds to Youth Offending: 43–52. Abingdon: Routledge.
Australian Institute of Health and Welfare (2016) Young people in child
protection and under youth justice supervision 2014–15.
Available at
https://www.aihw.gov.au/getmedia/bf9164f2-605b-4ff7-a894-bb264c11f075/20323.pdf.aspx?inline=true
(accessed 17 January 2019)
Australian Law Reform Commission (1997) Seen and
heard: Priority for children in the legal process. Available at
https://www.alrc.gov.au/sites/default/files/pdfs/publications/ALRC84.pdf
(accessed 17 January 2019)
Bandalli S (1998) Abolition of the presumption of doli incapax and the
criminalisation of children. The Howard Journal 37(2): 114–123.
DOI: 10.1111/1468-2311.00084.
Crofts T (2016) Reforming the age of criminal responsibility. South
African Journal of Psychology 46(4): 436–448. DOI:
10.1177/0081246316640116.
Edwards J (2016) Violence at Malmsbury Youth Justice Centre prompts
government ‘crackdown’ on rioting teens. ABC News, 24
October. Available at
https://www.abc.net.au/news/2016-10-24/violence-at-victorian-youth-justice-centre-prompts-investigation/7958582
(accessed 17 January 2019)
Fitz-Gibbon K (2016) Constructions of masculinity and responsibility in the
sentencing of children who commit lethal violence. In
Fitz-Gibbon K and Walklate
S (eds) Homicide, Gender and Responsibility: An International
Perspective: 78–94. 1st edn. Abingdon: Routledge.
Fleming J (2011) Qualitative encounters in police research. In Bartels L and
Richards K (eds) Qualitative Criminology: Stories from the Field:
13–24. Annandale: Hawkins Press.
Goldson B (2013) ‘Unsafe, unjust and harmful to wider society’:
Grounds for raising the minimum age of criminal responsibility
in England and
Wales. Youth Justice 13(2): 111–130. DOI:
10.1177/1473225413492054.
Home Office (1997) No More Excuses: A New Approach to Tackling Youth Crime
in England and Wales. London: Home Office.
Jesuit Social Services (2015) Rural Victoria Missing Out on Benefits of
Youth Diversion. Available at
http://jss.org.au/rural-victoria-missing-out-on-benefits-of-youth-diversion/
(accessed 15 May 2018).
Johnson M and Chambers F (2006) The criminal responsibility of children.
Paper presented at the Children’s Magistrates’ Conference,
Sydney, 1 February. Available at
http://www.childrenscourt.justice.nsw.gov.au/Documents/doliincapax-thecriminalresponsibilityofchildren.doc
(accessed 15 January 2019)
McBarnet D (2009) Whiter than white collar crime. In Halliday S and Schmidt P
(eds) Conducting Law and Society Research: Reflections on Method and
Practices: 152–162. New York: Cambridge University Press.
Miletic D (2015) Children languishing on remand ‘scandalous’:
Child commissioner. The Age, 24 August. Available at
https://www.theage.com.au/national/victoria/children-languishing-on-remand-scandalous-child-commissioner-20150818-gj1hek.html
(accessed 15 January 2019)
O’Brien W and Fitz-Gibbon K (2018) ‘The Minimum Age of Criminal
Responsibility in Victoria (Australia): Examining Stakeholders’
Views and
the Need for Principled Reform’, Youth Justice 17(2), 134-152.
Overall T (2016) Why diversion leads straight to crime prevention.
Insight. Available at
http://insight.vcoss.org.au/why-diversion-leads-straight-to-crime-prevention/
(accessed 15 May 2018).
Queensland Parliament (1999) Record of proceedings
(Hansard). 18 August 1999. Available at
https://www.parliament.qld.gov.au/documents/hansard/1999/990818ha.pdf
(accessed
15 January 2019).
Richards K (2011) What makes juvenile offenders different from adult
offenders. Available at https://aic.gov.au/publications/tandi/tandi409
(accessed 15 January 2019)
Richards K and Renshaw L (2013) Bail and remand
for young people in Australia: A national research project. Available at
https://aic.gov.au/publications/rpp/rpp125 (accessed 15 January 2019)
Royal Commission into the Protection and Detention of Children in the
Northern Territory (2017) Final report. Available at
https://childdetentionnt.royalcommission.gov.au/Pages/Report.aspx#_Read
(accessed 15 May 2018).
The Law Commission (2005) A New Homicide Act for England and Wales? An
overview. Available at
http://www.lawcom.gov.uk/app/uploads/2015/03/cp177_Murder_Manslaughter_and_Infanticide_consultation_overview_.pdf
(accessed 15 May 2018).
Weatherburn D, McGrath A and Bartels L (2012) Three dogmas of juvenile
justice. University of NSW Law Journal 35(3): 779-809.
Cases
C
v DPP [1995] 2 All ER 43
Certain Children v
Minister for Families and Children & Ors (No 2) [2017] VSC
241
Certain Children by their Litigation Guardian
Sister Marie Brigid Arthur v Minister for Families and Children & Ors
[2016] VSC 796
R v CRH (unreported, NSWSCA,
1996)
R v Gorrie (1919) 83 JP
136
RP v The Queen [2016] HCA 53
[1] See also Certain Children by their
Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and
Children & Ors [2016] VSC 796; Certain Children v Minister for
Families and Children & Ors (No 2) [2017] VSC 241.
[2] Ethics approval was granted from Deakin
University, Monash University and the Victorian Department of Health and Human
Services.
[3] One participant did not consent to being
audiotaped. The interviewer took notes throughout, which were included in the
thematic data
analysis phase.
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