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Legislative Assembly for the ACT: 2000 Week 3 Hansard (8 March) . . Page.. 657 ..

MR HUMPHRIES (continuing):

day that the child was not capable of forming the required criminal intent. I do not know the details of why the prosecution failed, but it did ultimately fail and the child was not convicted.

The fact that that case has arisen underscores a fairly significant fact facing this community, and that is that young people, to put it in common language, are growing up more quickly than they did some years ago. Children are exposed to many more facts of life at an earlier stage in life. Some would say that television is responsible for that. The innocence which used to characterise the young in bygone days seems to have largely disappeared from the age of six, seven or eight, depending on your child - from a relatively tender age. Unfortunately, more and more younger children - those below the age of 15, say - are coming to the attention of the criminal justice system.

The issue of whether the criminal justice system might need to confront the possibility of a prosecution for a crime of a person of the age of eight or nine, in the present context, is a real issue. It has not arisen in recent years, as I have said. There is no recollection by anybody I have spoken to in the criminal justice system of any prosecutions of children aged eight or nine in the ACT. Perhaps there have been some. We do not know of any. Mr Stanhope may know of some cases but I certainly do not. It is a possibility that such cases could arise in the future.

The question we have to ask ourselves is: If the criminal justice authorities of the Territory believe that a prosecution could be brought against a person, say, of the age of nine in the ACT, do we believe it is appropriate to interpose ourselves as the legislature and, irrespective of the judgment that the Director of Public Prosecutions and a court would make on the matter, rule out the possibility that any child under the age of 10 could commit a criminal offence? That is the issue facing us today.

Mr Speaker, we should be aware of the process that is gone through here. If at the present time a person of the age of, say, nine took certain actions that could be characterised as the committing of a criminal offence, that person's liability for prosecution would be assessed by the Director of Public Prosecutions as an independent statutory authority charged with the responsibility of bringing prosecutions in the ACT. The DPP would decide whether that person should be sent to trial or not, whether prosecution should be commenced. Let us assume that he decided that it should. Then the court would need to be satisfied that the child was capable of understanding his or her actions and be capable therefore of proceeding to trial. There are two filters in place at the present time to prevent idle, vexatious or worthless prosecutions of young people.

This legislation today, I suppose as a further protection against the possibility that an inappropriate prosecution could be brought against a young person, says that we will bring down the barrier and, even if those two conditions were to be satisfied - if the DPP was satisfied that the person could be prosecuted and the court was satisfied that, in theory, the person could be convicted - we believe that a prosecution should not be brought if a child is under the age of 10, irrespective of the circumstances, irrespective of how much material or evidence might be on the table about their capacity to form a criminal intent.

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