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Legislative Assembly for the ACT: 2000 Week 3 Hansard (8 March) . . Page.. 656 ..

MR HUMPHRIES (continuing):

of the age of seven is charged with even a serious criminal offence, they cannot be convicted of that crime, because there is no capacity to read into the child's actions, in the terms of the law, an intent to break the law.

Similarly, there is an age at which a child is deemed to be fully an adult, at which they are assessed as being capable of committing a crime and at which their actions are to be read in the same way as an adult's actions would be read. For example, if a child of the age of 15 were to beat up an old lady, then their actions would be deemed to be capable of constituting evidence that they had formed the intention to commit that crime. The age at which that particular assumption is made is set in the ACT, and most other jurisdictions in Australia, is at the age of 14. Between the ages of 14 and, as presently in the ACT, eight a child is presumed not to be able to form the intent to commit a crime. But the presumption can be dislodged by evidence led by the prosecution in a criminal trial. If in that hypothetical case I mentioned before there is evidence that the young person kicked, punched and otherwise assaulted an elderly person, there would be some evidence that the young person knew exactly what they were doing; that they were acting deliberately, realising that what they were doing was wrong. There would be some basis on which a prosecution might successfully be brought.

This doctrine of doli incapax, to use the Latin term for it, applies in the ACT at the age of eight at the present time. Mr Stanhope's Bills propose to raise it to the age of 10. I can indicate that the Government, quite frankly, does not have a strong view either way about this legislation. The reason it does not have a strong view about it is that the matter, while a matter perhaps of considerable import, particularly given the recent debate about the incarceration of young people under principles of mandatory sentencing, is a principle which at the present time applies extremely rarely in the ACT. To the best of my knowledge, there is no case within the living memory of any people involved in our present criminal justice system of a child between the ages of eight and 10 being charged with a criminal offence. Much as the principle at stake here is important to discuss, I think we need to put on the record very clearly that this is not a matter which is going to affect the day-to-day workings of the criminal justice system in the ACT. That is because such prosecutions are very rare.

The issue before the Assembly, I suppose, is just how likely it will be at some point in the future that the criminal justice system will find itself having to consider the possibility of a young person being charged with an offence at around that age, between eight and 10 years. Members will be aware that just a few months ago a child was charged with murder. The offence - I use "offence" in inverted commas - had been committed when that child was 10 years of age. There was quite some controversy about it. Members might recall that the child took a younger child of about the age of seven or eight to the edge of a rock and dropped it into a river. That child could not swim, the child drowned and the young person of the age of 10 years was formally charged. There was much toing-and-froing in the New South Wales legal system about whether this was appropriate or not. A decision was ultimately by the Director of Public Prosecutions in that State and, I think, by a magistrate in that State that the child, at the age of 10, was capable of understanding that what they had done was wrong and that if they were capable of understanding the consequences of their action to that extent they should be prosecuted for murder or manslaughter in that State. The prosecution ultimately failed, I think because the jury failed to convict the child. It may have taken the view at the end of the

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