Bradley, Lisa --- "The Age of Criminal Responsibility Revisited" [2003] DeakinLawRw 4; (2003) 8(1) Deakin Law Review 71
[*] BA, LLB(Hons); BA, LLB (Hons), LLM student (Monash University). Thanks to Dr Bronwyn Naylor, Senior Lecturer in Law, Monash University, for supervising this research.
[1] Christopher Darby, 'The Young Offenders Act 1993 (SA) and the Rights of the Child' [1994] AdelLawRw 9; (1994) 16 Adelaide Law Review 285, 286.
[2] [1992] HCA 57; (1992) 177 CLR 292.
[3] Simon Bronnitt and Maree Ayers, 'Criminal Law and Human Rights' in David Kinley (ed), Human Rights in Australian Law (1998) 120, 122.
[4] Minister for Immigration, Local Government and Ethnic Affairs v Ah Hin Teoh [1995] HCA 20; (1995) 128 ALR 353.
[5] Children and Homicide –Appropriate Procedures for Juveniles in Murder and Manslaughter Cases (1996). Quoted from Gregor Urbas, The Age of Criminal Responsibility (2000) Australian Institute of Criminology <http://www.aic.gov.au> . at 1 October 2002.
[6] T and V v UK.
[7] Gail Hubble, 'Juvenile Defendants: Taking the Human Rights of Children Seriously' (2000) 25 Alternative Law Journal 116, 120.
[8] Alison Young, Imagining Crime (1996) 111.
[9] Hubble, above n 9, and Young, above n 10 and J Neville Turner, 'The James Bulger Case: A Challenge to Juvenile Justice Theories' (1994) Law Institute Journal 734.
[10] T v V v UK, 19.
[11] Young, above n 10, 114.
[12] T and V v UK, 10.
[13] T and V v UK, 16.
[14] T and V v UK, 62. Article 3 of the European Convention of Human Rights prohibits inhuman and degrading treatment. It contains similar provisions to Article 40 of the CROC.
[15] T and V v UK, 80-82.
[16] T and V v UK, 88.
[17] T and V v UK , 33.
[18] T and V v UK , 33.
[19] The doctrine of doli incapax was operational in the UK at the time of the boys’ alleged offence and trial.
[20] T and V v UK , 58.
[21] Gorrie (1918) 83 JP 136 at 136; R (a child) v Whitty (1993) 66 Australian Criminal Reports 462, C v DPP [1995] UKHL 15; (1995) 2 WLR 383.
[22] T and V v UK, 62.
[23] T and V v UK, 71.
[24] Hubble, above n 9, 119.
[25] Steiner, H and Alston, P. International Human Rights in Context ( 2nd ed, 2000) 779-808.
[26] Hubble, above n 9, 120.
[27] Gretta Sereny, Cries Unheard (1997) 31-2.
[28] Ngaire Naffine. ‘Children in the Children’s Court: Can There be Rights without a Remedy’ in Philip Alston, Stephen Parker and John Seymour, Children, Rights and the Law (1992) 76, 90. See also P arsloe, Juvenile Justice in Britain and the United States: the Balance of Needs and Rights (1978).
[29]Harry Blagg and Meredith Wilkie, ‘Young People and Policing in Australia: the Relevance of the UN Convention on the Rights of the Child’ (1993) 3 Australian Journal of Human Rights 1, 1.
[30] Ian O’Connor and Pamela Sweetapple, Children in Justice (1998) 16.
[31] James Baxter, ‘The Suggestibility of Child Witnesses: A Review’ (1990) 4 Applied Cognitive Psychology 393.
[32] Darby, above n 3, 299.
[33] Crimes Act 1958 (Vic) ss 464A-464J.
[34] White and Alder, ‘Police Research and Methodological Issues’ (1993) 9 Socio-Legal Bulletin 12. Similar rates (around 30-35%) were recorded in four Australian jurisdictions.
[35] Department of Justice, Portfolio Planning, Victoria, Statistics of the Children’s Court of Victoria 1997/8 and 1998/9, 10. Also available online at <http://www.justice.vic.gov.a u> ) at 1 October 2002.
[36] 8397 juveniles were cautioned and 6246 juveniles appeared before the Children’s Court. Statistics of the Children’s Court of Victoria 1997/8 and 1998/9, above n 37, 10.
[37] Steve James and Ken Polk, ‘Police and Young Australians’, in Duncan Chappell and Paul Wilson, Australian Policing: Contemporary Issues (1996) 180, 187.
[38] I Piliavin and S Briar, ‘Police Encounters with Juveniles’ (1964) 70 The American Journal of Sociology 206. Quoted from James and Polk, ibid 188.
[39] James and Polk, above n 39, 188.
[40] Rob White, ‘The Police’ in Christine Alder (et al) Perceptions of the Treatment of Juveniles in the Legal System (1992). Quoted from James and Polk, above n 39, 188.
[41] There is also a growing body of literature concluding that Aboriginality is the single greatest indicator whether a particular child will be charged rather than cautioned. See especially Fay Gale, Rebecca Bailey-Harris and Joy Wundersitz, Aboriginal Youth and the Criminal Justice System: the Injustice of Justice? (1990).
[42] Joy Wundersitz, ‘Pre-Court Diversion: The Australian Experience’, in Ian O’Connor and Allan Borowski, Juvenile Crime, Justice and Corrections (1997) 270, 279. Further, the author acknowledges that many of these concerns may apply equally to adult defendants and could even be regarded as endemic to the criminal justice system.
[43] See O’Connor and Sweetapple, above n 33; and Naffine, above n 30.
[44] O’Connor and Sweetapple, above n 32, 21-22.
[45]WK Muir, Police: Street Corner Politicians (1977). Quoted from James and Polk, above n 39, 193.
[46] Naffine, above n 30, 84.
[47] Ngaire Naffine, Joy Wundersitz, and Fay Gale, ‘Back to Justice for Juveniles: the Rhetoric and Reality of Law Reform’ (1990) 23 Australian and New Zealand Journal of Criminology 193, 193-205.
[48] John Seymour, ‘Children’s Courts in Australia: their current role and functions’. In Allan Borowski & Ian O’Connor, Juvenile Crime, Justice and Corrections (1997) 292, 301.
[49] Naffine (1992) above n 30, 85.
[50] Phillipa O’Dea, ‘Responsibilities, but what about Rights’ (1992) 3 Polemic 36.
[51] Ngaire Naffine and Joy Wundersitz, ‘Lawyers in the Children’s Court: an Australian perspective’ (1991) Crime and Delinquency 374, 380-381.
[52]Ibid.
[53] Naffine, above n 30, 87.
[54] Ibid.
[55] Michelle Huntsman, ‘Children’s Court’ (1992) 3 Polemic 19, 20.
[56] Ibid.
[57] Naffine, above n 30, 85.
[58] Naffine and Wundersitz, above n 53, 383.
[59]Ibid 383.
[60] Ibid 387.
[61] Ibid 388.
[62] Ibid 391.
[63] Naffine, above n 30, 87.
[64] Moira Rayner, ‘Taking Seriously the Child’s Right to be Heard’ in P Alston and G Brennan, The UN Children’s Convention and Australia (1991) 34, 34–39. See also ‘Working with Children in the Criminal Justice System’ (July 2000) Law Society Journal 30, 30-31.
[65] Elizabeth Scott and Thomas Grisso, 'The Evolution of Adolescence: A Developmental Perspective on Juvenile Justice Reform’ (1997) 88 Journal of Law and Criminology 137, 137-145.
[66] Naffine argues that the ‘expository tradition in legal education’ results in lawyers who are not trained to consider ‘the law in action’ and subjects that focus on the operation of the law have a low status within law schools. Naffine, above n 30, 93.
[67] Terence Bartholomew, ‘Legal and Clinical Enactment of the Doli Incapax Defence in the Supreme Court of Victoria, Australia’ (1998) 5 Psychiatry, Psychology and the Law 95, 99.
[68] Brett, Waller and Williams, Criminal Law: Text and Cases (8th ed 1997).
[69] See C (A minor) v DPP [1995] UKHL 15; (1995) 2 WLR 383.
[70] The NSW Chief Magistrate, for example, has argued the presumption should only apply to children younger than 12 as modern children with access to education, television and radio cannot be compared with ‘a 12 year old in rural Britain in 1769’. ‘Children of 12 may be Tried as Adults’, Sydney Morning Herald, 11 January 2000, 3.
[72] Ibid.
[73] See New South Wales Attorney-General’s Department, Criminal Law Review Division (CLRD) 1999, ‘A review of the law on the age of criminal responsibility of children’, available at <http://www.lawlink.nsw.gov.au/clrd> at 1 October 2002. McLeod argues that the doctrine has become redundant in Canada because it is never pleaded. J McLeod, ‘Doli incapax: the Forgotten Presumption in Juvenile Court Trials’ (1980) 3 Canadian Journal of Family Law 253, 253-279.
[74] According to one author, doli incapax was pleaded in only two cases in Victoria during the 1990s – Angela O’Brien, Presumption of Doli Incapax: Is it Outmoded or Forgotten? (Honours thesis, Monash University, 1996) .
[75] Patricia Blazey-Ayoub, ‘Doli Incapax’ (1996) 20 Criminal Law Journal 20, 35.
[77] Ibid.
[78] [1995] UKHL 15; 1995 2 WLR 383.
[79] The evidence of one consultant psychiatrist (Dr Eileen Vizard) was admitted by subpoena. She expressed the opinion that Thompson was of average intelligence and would have known the difference between right and wrong. She also said he was suffering from post-traumatic stress disorder. The defendants’ school principal and teacher gave evidence that the boys had been taught that hitting another person was ‘wrong’. T and V v UK, 11.
[80] Bartholomew, above n 69
[81] L Steinberg and E Cauffman, ‘A Developmental Perspective on Jurisdictional Boundary’ in Jeffrey Fagan and Franklin Zimring, The Changing Borders of Juvenile Justice (2000) 379, 384.
[82] T v UK, per Lord Reed.
[83] See J Piaget, The Moral Judgement of the Child (1955) and L Kohlberg, Stage in the Development of MoralThought and Action (1969).
[84] A major study of adolescent adjudicative competence has recently been funded by Temple University in the USA. For a media release on the group’s work, see <http://www.temple.edu/temple_times/4-5-01/juv.html> at 1 October 2002.
[85] Stanford v Kentucky (1989) 489 US 361.
[86] Laurence Steinberg and Elizabeth Cauffman, ‘Maturity of Judgement in Adolescence: Psychological Factors in Adolescent Decision-making’ (1996) 20 Law and Human Behavior 249.
[87] Elizabeth Scott, N Dickon Reppucci and Jennifer Woolard, ‘Evaluating Adolescent Decision Making in Legal Contexts’ (1995) 19 Law and Human Behavior 221, 221-244.
[88] Elizabeth Cauffman and Laurence Steinberg, ‘(Im)maturity of Judgement in Adolescents: Why Adolescents May Be Less Culpable than Adults’ (2000) 18 Behavioral Sciences and the Law 743.
[89] Steinberg and Caufffman, above n 83, 381.
[90] See generally, Jennifer Woolard, N. Dickon Reppucci and Richard Redding, ‘Theoretical and Methodological Issues in Studying Children’s Capacities in Legal Contexts’ (1996) 20 Law and Human Behavior, 219.
[91]Steinberg and Cauffman, above n 83.
[92] See Thomas Grisso, ‘The Competence of Adolescents as Trial Defendants’ (1997) 3 Psychology, Public Policy and the Law; Scott, Reppucci and Woolard, above n 90. See also Scott and Grisso, above n 68, 137-189.
[93] See Grisso, above n 95; and Scott, Reppucci and Woolard, above n 90; and Scott and Grisso, above n 68 and; Steinberg and Cauffman, above n 89.
[94] Elizabeth Scott and Thomas Grisso, 'The Evolution of Adolescence: A Developmental Perspective on Juvenile Justice Reform' (1997) 88 Journal of Criminal Law and Criminology 1 ,11.
[95] Steinberg and Cauffman, above n 89, 268. Their definition of maturity included responsibility, temperance and perspective as well as cognitive competence.
[96] Ibid 269.
[97]Thomas Grisso, ‘Society’s Retributive Responses to Juvenile Violence: A Developmental Perspective’ (1996) 20 Law and Human Behaviour 229, 229-247.
[98] Scott and Grisso, above n 96, 22.
[99] See, e.g., Jennifer Smith and Ian O’Connor, 'Child abuse, youth homelessness and juvenile crime' in Allan Borowski and Ian O’Connor, (ed) Juvenile Crime, Justice and Corrections (1997) 121 and Joy Wunderstiz, 'Juvenile Justice' in Kayleen Hazlehurst (ed) Crime and Justice: an Australian Textbook on Criminology (1996) 113, 134.
[100] Naffine, above n 30, 96.
[101] Steinberg and Cauffman, above n 83, 391.
[102] Joy Wundersitz, 'Juvenile Justice in Australia: Towards the New Millennium', in Duncan Chappell (ed) Crime and the Criminal Justice System in Australia: 2000 and Beyond (2000) 132. The majority of juvenile offenders will come into contact with the criminal justice system only once. Recidivism is considerably higher, however, among indigenous youth in Australia than non-indigenous youth – 60% of Aboriginal youth offenders come before the courts more than once.