IS THE LAW AN ASS?

By Ivan Ray CEO /Secrtary CAA Inc.

The news of a Magistrate freeing a 12-year-old accused of a two-day crime spree certainly raises the spectre of the title Equus asinus (Ass) being applied to the players in this sad process. The 12-year-old was charged over a two-day crime spree with five other co-offenders for trying to rob a business (acting in concert), brandishing a knife, and fleeing in a stolen car. Two hours later, they robbed a service station, and when they failed to force their way in again and were confronted, they fled. Police spotted the stolen car, and the gang stopped at yet another service station; however, police were on hand and arrested two. The four remaining perpetrators fled in the stolen car, crashing into a pole, where another two were arrested. There is no way that a clear-thinking person could conclude that the 12-year-old was just being naughty or mischievous and didn’t know it was wrong.

For goodness ‘ sake, the child had two days of opportunity to stop, and what of the child’s parents; what did they do when the young child didn’t come home? Doli incapax is an ancient legal principle evolving in the medieval English common law, roughly 5^th to 15th century, about 500 AD – 1500. .Although now legislated in Victoria, the only State where this has happened, see s 10 of the Youth Justice Act 2024, it has never been legislated in the UK or elsewhere in Australia and remains a legal doctrine. The doctrine of doli incapax is an ancient common law presumption, inherited from English law, and its present Australian authority is the High Court decision in RP v The Queen (2016) 259 CLR 641; [2016] HCA 53, which confirms that a child aged 10 to under 14 is presumed incapable of criminal responsibility unless the prosecution proves beyond reasonable doubt that the child understood the conduct was seriously wrong, rather than merely naughty or mischievous. It has not been codified in Australia but remains a binding common law doctrine unless and until altered by legislation.

There are compelling reasons why this doctrine needs to be codified, not only for the protection of citizens but for the welfare of the child. This particular child’s actions were not their first foray into crime but their first time in Court, and to let the child walk out of Court without any sanction is simply giving the child approval to continue criminal activity. The child receiving a warning from the magistrate only reinforces the premise that it is OK to commit crime. This, of course, raises another conundrum: what happens if this child continues criminal activity and is killed in a stolen car. 

Who is responsible? Culpability must rest somewhere, and we would argue that it should be with the courts and the judicial officer dealing with the case. The child can hardly be held to account if they are dead, but watch: if that happens, the ones responsible will duck for cover big time.- That’s him/her over their’s fault!  Although we are not privy to the whole hearing, only what was reported, it seems that the Court did not consider the child’s welfare.

This, of itself, must be urgently addressed by our legislators, as must the role of the parents, who must take responsibility for their children’s behaviour. A parent convicted of failing to provide basic parental control and sent to jail for the actions of their child would quickly make a huge difference in the quantum of juvenile offending.

Comparing the children of the medieval era to the children of today is an abomination and an insult.

The list of variances is overwhelming in nutrition, education, and social communication, and the list goes on, so the concept of children at any age not understanding right from wrong is complete nonsense.

There may be very young children who don’t understand, but their age is well below the legal threshold currently in vogue. Understanding is not age-related; there are young people above the current threshold who, in rare cases, may not understand, but as rare as that is, children well below the threshold almost always understand right and wrong.

The issue of understanding is a matter for the courts, not the police. Our greatest concern is the lack of support for younger children involved in crime. At the very least, the child should have been referred to the Police Cautioning program if the Court was unprepared to deal with the matter.

Rather than just pushing them out the door to be exposed to more of the same behaviour, the Court has, or should have, an obligation to the child and to ensure that the child’s interests are best served, and pushing them out the door is not one of them. The courts should also have an obligation to the victims and the community more broadly to protect them from criminals, even if they are children.

The knife they use does not discriminate depending on who is holding it. In reality, a child with a knife, as there was apparently one in this group, is far more dangerous than even a young adult, as they have no ability to be influenced by consequences if they use it. This is distinct from the concept of right or wrong.

The Community Services Welfare Act 1978 abolished the provision for children “likely to lapse into a life of vice or crime”. It is apparent that such a provision is again needed to ensure children receive guidance to prevent them from becoming recidivist criminal offenders as they age.

We are living in a time of heightened criminal activity, much of it committed by younger people than ever before, so an antiquated medieval process that is out of step with our current society and standards must be scrapped urgently. That the Courts still hang onto this doctrine is an indictment on them, and hiding behind precedent to promote extremist values is making the legal system look like an Ass.  

 

DONATE