The Children’s Court is a specialist jurisdiction, here at McKenzie McLoughlin we appear at any Children’s Court in proceedings for Criminal Charges, AVO’s & Forensic Procedures.
Children may also be able to avoid court entirely for more minor crimes by the police applying the Young Offenders Act 1997. This act establishes a legislative diversionary system of Warnings, Cautions and Youth Justice Conferences.
The NSW Police also have a Protected Admissions Scheme where certain admissions can be made on a police written undertaking not to use them against a Young Person other than for the purpose of a diversion under the Young Offenders Act 1997.
Why choose McKenzie McLaughlin Law?
We know from considerable experience in this jurisdiction that children are some of the most vulnerable people who go through our criminal justice system. Accordingly, children need experienced criminal representation in a jurisdiction which is different in many aspects to an adult criminal court.
We also understand that an entire family suffers stress when a child is facing court, so let our helpful lawyers guide you through the process. Pleading guilty, not guilty, facing an AVO or contacted by the police about an allegation, call us to discuss your situation.
The Children’s Court deals with minor to very serious crimes. Although the primary focus of this jurisdiction is rehabilitation, custody or “control orders” are also available to the court for serious matters. As such, it’s important to have a criminal practitioner who is experienced appearing before the Children’s Court.
James McLoughlin spent several years working in this jurisdiction as a Prosecutor, and he knows the unique aspects of the law that apply to cases before the Children’s Court. That includes knowing what evidence the Police may try and use and why it may not be admissible in this jurisdiction.
By way of example, one unique area of law in the Children’s Court is doli incapax.
What is “doli incapax” – why does age matter?
A person under the age of 18 is referred to by the Children’s Court as a “Young Person.”
A Young Person under 10 years of age cannot be held criminally responsible for their actions.
A Young Person who is 10 years old, but under 14 years of age at the time of the commission of an alleged offence, is presumed at law to be “doli incapax.” That means that the Young Person is presumed to be incapable of having the requisite ‘mens rea’ (i.e. intention), to commit a criminal offence.
This does not mean the Young Person can’t participate in a diversionary scheme under the Young Offenders Act (1997). However, should the police charge the Young Person, the Prosecution must disprove the presumption of ‘doli incapax” beyond a reasonable doubt. This means that doli incapax is treated as an element of the offence charged for a Young Person of this age.
There is a large amount case law on the issue, however the leading authority is RP v The Queen [2016] HCA 53.
In December 2016, in a joint judgment of 4 justices, the High Court considered the law on doli incpax. This is now the leading authority on doli incapax.
Following RP v The Queen, it is no longer accepted at law, that there is a sliding scale as to how much the prosecution need to prove to rebut the presumption of doli incapax. It used to often be accepted that the older the person was, the less evidence the prosecution may need to rebut the presumption.
The prosecution must adduce admissible evidence (apart from the circumstances of the offence), to establish that the Young Person’s development was such that they understood the moral wrongness of their acts (i.e. that it was seriously wrong in a moral sense). This may need to include evidence about the environment in which the Young Person has been raised or from which any conclusion could be drawn as to their moral development.
The following are some relevant extracts from that judgment, excluding citations to previous authorities. As you can see, this area of law is complex and a Young Peron’s guilt or innocence may depend to a large extent on what evidence the police hold and it’s admissibility.
Extracts from: RP v The Queen [2016] HCA 53
“The common law presumes that a child under 14 years lacks the capacity to be criminally responsible for his or her acts. The child is said to be doli incapax.”
“The rationale for the presumption of doli incapax is the view that a child aged under 14 years is not sufficiently intellectually and morally developed to appreciate the difference between right and wrong and thus lacks the capacity for mens rea.”
“..the presumption may be rebutted by evidence that the child knew that it was morally wrong to engage in the conduct that constitutes the physical element or elements of the offence. Knowledge of the moral wrongness of an act or omission is to be distinguished from the child’s awareness that his or her conduct is merely naughty or mischievous. This distinction may be captured by stating the requirement in terms of proof that the child knew the conduct was “seriously wrong” or “gravely wrong”. No matter how obviously wrong the act or acts constituting the offence may be, the presumption cannot be rebutted merely as an inference from the doing of that act or those acts. To the extent that the decision of the Court of Appeal of the Supreme Court of Victoria in R v ALH suggests a contrary approach, it is wrong. The prosecution must point to evidence from which an inference can be drawn beyond reasonable doubt that the child’s development is such that he or she knew that it was morally wrong to engage in the conduct. This directs attention to the child’s education and the environment in which the child has been raised.”
“… the knowledge in each case is of the wrongness of the act as a matter of morality and not law. There is, however, in the case of the child defendant, the further dimension of proof of knowledge of serious wrongness as distinct from mere naughtiness.”
“What suffices to rebut the presumption that a child defendant is doli incapax will vary according to the nature of the allegation and the child. A child will more readily understand the seriousness of an act if it concerns values of which he or she has direct personal experience. For example, a child is likely better able to understand control of his or her own possessions and the theft of others’ property compared to offences such as damaging public property, fare evading, receiving stolen goods, fraud or forgery. Answers given in the course of a police interview may serve to prove the child possessed the requisite knowledge. In other cases, evidence of the child’s progress at school and of the child’s home life will be required. It has been said that the closer the child defendant is to the age of 10 the stronger must be the evidence to rebut the presumption. Conversely, the nearer the child is to the age of 14, the less strong need the evidence be to rebut the presumption. The difficulty with these statements is that they are apt to suggest that children mature at a uniform rate. The only presumption which the law makes in the case of child defendants is that those aged under 14 are doli incapax. Rebutting that presumption directs attention to the intellectual and moral development of the particular child. Some 10-year-old children will possess the capacity to understand the serious wrongness of their acts while other children aged very nearly 14 years old will not.”