13 July 2007

Too young to rape

| LG
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[ED (Ntp) – Who says we don’t listen to our readership. Below is LG’s post with my reactionary gripe to the ruling and CT link following the more tag. Thanks also to stan_bowles for the link to the court ruling.]
The ABC has a story the ACT Supreme Court finding an 11 year old boy not guilty of sexually assaulting a young girl at knife point.

The article states that “the boy and another 11 yr old had taken the girl to a park and forced her to get undressed. The 11-year-old then tried to have sex with the girl until other people entered the park and he then ran away”

Justice Higgins “concluded the boy was too young to realise his actions were criminal, and while he had acted out sexual behaviour, he was clearly incapable of engaging in sexual intercourse”.

Now I know the argument of how old do you have to be to be responsible for your actions is an old one and I’m not sure of what penalty (if any) the boy has or will received. But it can hardly be comforting to the young girl in question knowing that despite being forced to do things at knife point, the offender was “clearly incapable of engaging in sexual intercourse”.

A strange, sad story. Can we at least penalise the parents who have obviously done a terrible job in raising their child?

First posted by NTP as: WTF? Higgins has his head up his @r$e!

OK, I might be going off a bit half cocked but our esteemed Chief Justice Terry Higgins has just let of an attempted rapist. The facts not in issue are that the offender accosted the victim, held a knife to her throat and forced her to undress while his friend acted as a lookout. She only got away when other people arrived in the park where the assault was taking place.

The issue is with the offender’s age. He and has mate were both 11.

Justice Higgins said the onus was on the Crown to not only prove the facts, but also, “Had he a guilty knowledge that he was doing wrong?”

He found the boy’s actions had not met the criteria of section 26 of the ACT’s Criminal Code, which says: “A child aged 10 years or older, but under 14 years old, can only be criminally responsible for an offence if the child knows that his or her conduct is wrong.”

I’m sorry, why hold a knife to someone if you think what you’re about to do is OK? Why have a lookout unless you are concerned about being caught?

The full Canberra Times article relating to the case can be found here.

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(This is a newish bit to the topic, so I can break my self-imposed silence). I have always understood that the role of judges is to interpret and apply the law. Now, that properly allows some limited room to move (check out the theoretical basis for promissory estoppel, and perhaps for negligent advice as examples). A lower court judge can properly fill in (but in a consistent way) the gaps in common law left by previous decisions but he/she cannot disturb precedent established by higher courts or the law made by Parliament. (However, a law outside Parliament’s wide legislative power can be found to be so and ignored). A superior court judge (eg High Court) can overturn precedent but they are mostly reluctant to do so. Something to do with humility – recognising that everyone for the last umpteen years might have been right.

The room for, say, an ACTSC judge to move is pretty limited – the best chance is probably to take an available but uncommon view of the facts. Where a judge makes an adventurous decision, someone will appeal and slap it down (see some first instance Fed Crt migration/refugee decisions). All that happens is broken hearts and more costs.

If you went a bit further in your legal studies you would realise that 99% of the judiciary FOLLOW precedent. They don’t set it. If the CJ just decided to make his own test, overturning precedent from a higher court in the process, then it would be an appelable error and the decision would be overturned in a flash.

And Nyssa, yeah I agree – Politicians aren’t always in touch with the general public. But I’d rather have my laws being made by people who are elected and answerable as opposed to unelected, unrepresentative judges who have a life tenure. Give me a bench of Callinan’s over a bench of Kirby’s any day.

I’m with Nyssa on this one. Every time a Judge makes a decission they are in effect creating new law. Legal studies in high school will teach you about precedence. The letter of the law is grey so Judges can interpret it. Jusges are supposed to reflect the views of society. They fail miserably regularly.

Heavs, and yes, Parliament are known for being in touch with the general public….

Heavs, as the mother of a 12yo girl I would hope that the law would protect my child and should she be assault, punish her attacker.

I’m in favour of laws that reflect the changes in society. We don’t have the scold’s bridle or a ducking stool anymore to punish people, we have laws which are meant to protect ALL members of society especially from those who are violent.

Just because your attacker is under a certain age doesn’t negate the consequences of their actions, especially since this child had a history of violence, failed FACS intervention and a psychiatrist who failed to address the rape at all in her therapy sessions with the child.

As I have said previously this boy needs some serious psychotherapy and removal from his parents. He also needs to be taken out of mainstream schooling and carefully watched around female children.

So I take it Nyssa is in favour of activist judges who attempt to make the law up as they go along, rather than judges who actually follow the letter of the law as LAID DOWN BY PARLIAMENT.

neanderthalsis4:54 pm 18 Jul 07

Does he weigh the same as a duck?

Maybe we should burn him in an attempt to evict the evil spirit that made him do it.

Now THAT is what a u14 in 1845 would have been taking into consideration.

Those same “legal principles” have been adapted to suit the times, in the past i.e. Women being allowed to work/vote/gain custody of children.

Given that the world has dramatically changed since the laws were written, one would assume the legal profession would get a clue and update the laws according to how society functions now.

Or are they happy living as cavemen?

The hubris in believing we should overturn legal principles that have served and safeguarded our way of life over at least five hundred years, based on your alleged “common sense”, is unbelievable.

Snahons_scv6_berlina10:32 am 18 Jul 07

thats right VY, we must never ever question our learned legal masters.

VYBerlinaV8 now_with_added grunt9:49 am 18 Jul 07

But Nyssa, the court FOUND that way, so it MUST be right.

Special G – and any mother, well maybe just me…

VicePope, I read the report. I didn’t agree with it. Nor do I believe that “successful” rehabilitation has been undertaken.

Then again CARAU is full of femi-nazis and I do wonder about child psychiatrists who don’t ask about a vitally important incident which later led to court proceedings.

If it was my little girl I’d bury the little shit. Ask any dad and he would probably say the same thing.

Maybe they believed that nobody in their right mind would question the presumption that holding a knife to somebody’s throat was interpreted as anything other than intent.

It would have been more correct to say that the court found that the evidence presented by the prosecution did not disprove the presumption that he didn’t know that what he was doing was wrong.

VYBerlinaV8 now_with_added grunt3:53 pm 17 Jul 07

“VY etc – the court found that the accused did not know that what he was doing was wrong, “deep down” or otherwise.”

I completely understand that this is what the court found. But a court ‘finding’ something does NOT make it FACT.

I think you have all together too much faith in the legal system!

“Common sense is the collection of prejudices acquired by age eighteen.”

– Albert Einstein.

Toriness – I stuck in the wodge of quote because it was as clear as daylight that most people hadn’t read the decision. (Which, come to think of it is pretty much like a hell of a lot of law students). Some apparently still haven’t.

Those who detest the decision can continue to do so but, unless they happen to be the DPP, that’s all they can do. Trying to apply “common sense” or other arbitrary standards to what happens in the tight confines of a judicial process is, with respect, like trying to work out who won a football match by seeing who has the cleanest jumpers. It’s utterly irrelevant.

Anyhow, I look forward to the big debate about whether anyone else should be responsible for what a person does. Is there a working philosopher or ethicist in the room – or will we, once again, have to rely on good old “common sense” and “community expectations”?

Anyhow, this is my last on this topic. The case is just so miserably sad from everyone’s perspective.

Today’s media informs kids about people being beheaded, rape victims, drink driving and the like and that it is bad.

How this kid didn’t know that using a knife as a weapon was wrong when he had used rocks as a weapon is a damn mystery to me. How he didn’t know that his previous accounts of sexualised behaviour is wrong, given that he should have at least been “spoken to” about it, also stuns me.

tori – excellent summation 🙂

toriness, in this case the judge considered that and didn’t agree with you. From reading the judgement myself, the reason for that seems to be that to prove intent the prosecution needs to show that he knew it was wrong in a deeper sense than just “mum would be mad at me” wrong.

vicepope, i don’t know that copy and pasting blocks of a judgement qualifies as a 101 unit – certainly didn’t when i did my bachelor of laws anyway. however the closing sentence of the judge’s comments you have copied there states intent is formed by evidence of “a guilty knowledge that he was doing wrong” and again i state that it is obvious from the fact the boy posted a friend as a watch out that he knew what he was doing was wrong as in he did not want to be caught! people doing the right thing don’t feel like they have to hide it from others.

here endeth common sense 101.

As Mael stated, there is a significant difference between an u14 in 1845 and an u14yo in 2007.

What chance does any female have around him if he isn’t “informed” that his actions were wrong?

And if the evidence informs us that FACS knew of his “sexualised” behaviour at age 7 and did NOTHING, then who truly is to blame?

This boy shouldn’t have been in a mainstream school nor should he have been around female students if he was acting in such a way.

He was found to be a victim of continuing emotional and psychological abuse.

So were many people but they didn’t throw rocks at school, or assault a female or use a knife as a weapon. When is it going to end?

As for There was a further report, dated 13 April 2006, after the incident with GL, from Dr Foce. It does not address that incident. JA was reported to have been engaged in a number of incidents of disturbed behaviour

Why wasn’t the incident discussed with his psychiatrist? It seems bloody important to me.

But it has given children between 10-14yo the basic right to “fake” knowing right from wrong to escape criminal responsibility for their actions.

His parents should be done for child abuse and aiding in the criminal activities of a minor for failing to parent the child.

In his pants Thumper.

Unless it was a knife in his pocket.

3 things.

A u14 in 1845 knew and had been exposed to significantly less than a u14 in 2007.

The next time the police want to lock me up ‘for my protection’ shall I tell them to shove it because their job is to only differentiate between right and wrong, and consequently if they have found nothing ‘wrong’, they can either arrest me or keep moving ? (and want to see how far I get ?)

Thirdly, this kid should not have been in school. He’s too f..ked up.

I’m getting a bit tired of this one. But:

VY etc – the court found that the accused did not know that what he was doing was wrong, “deep down” or otherwise.

Nyssa/Toriness – and the judgment speaks of what was already being done for the accused’s problem. Not guilty, so no sentence, but the judge obviously took into account what was already happening. The possible alternative (committal to a psych institution) would probably be disproportionate and and inappropriate for a child. At the risk of adding a lot more length, this is what His Honour said:
85. There was evidence from Mr Marsden, a teacher, concerning JA’s behaviour at school. This was primarily during 2005. This was the school period most proximate to the offending behaviour. There was a continuing concern about JA’s ‘problem behaviours’. It usually involved ‘rough play’ either as a perpetrator or victim. Mr Marsden usually expressed disapproval of such behaviour in terms of a breach of school rules or policies. Sometimes suspension was imposed. ….
90. School records were produced which confirmed Mr Marsden’s statement concerning JA’s behaviour at school, from 2003 to 2005 inclusive.
91. On one occasion in 2003 police were called concerning his behaviour in throwing stones at cars. No charges were laid. He was, of course, then under 10 years of age, being born on 9 July 1994.
92. His last student assessment in December 2005 was:
[JA] is a quiet class member who enjoys the company of close friends. When on task [JA] has produced some quality work. He needs a lot of encouragement to complete tasks and requires constant supervision. [JA] is working towards accepting responsibility for his choices. [JA] needs to work on maintaining concentration during instruction time, as he can get easily distracted. At times this can hamper [JA]’s progress, as his work is often incomplete. I have seen improvements in areas of [JA]’s work and hope he can continue this next year. [JA] has shown improvement towards completing tasks in term four.
93. Even after the events charged, in June 2006, the class teacher reported (inter alia):
[JA] loses concentration at times and when this occurs he becomes silly in an attempt to be funny. His sense of humour is enjoyable but [JA] must learn to ‘pick his time’ to act the clown.
94. These assessments do not support a conclusion that JA was, as at January 2006, able to assess and apply adult standards. Indeed, if anything the last assessment would tend to support a contrary conclusion. ….
100. I would pause here to note that question 106 was both misleading and irrelevant. It is not against the law to force people to do what they do not wish to do. That is one of the objects of deterrence by the threat of lawful punishment. It is only if it is against the law to do so that it becomes wrong to force a person to so something. The young person clearly understood that, generally, laws were designed to prevent conduct that was wrong. It is also not conclusive of criminal capacity that conduct is or is not known to be unlawful although, as noted already, that knowledge may lead to a conclusion that the person possessed of that knowledge also knows that the conduct so forbidden is wrong in the sense of being regarded as wrong in the relevant sense, that is, regarded as such by ordinary reasonable members of the general community. The converse may also, though not necessarily, be true. …
106. The remaining material relates to the interaction of JA and his family with Family Services. In December 2001 ‘concerns’ were expressed by a psychologist about the entire family due to domestic violence arising from the father’s bipolar disorder. Then aged seven, JA was observed to engage in “disruptive and uncontrollable behaviour at school”. He was referred to a psychiatrist.
107. In May 2000 JA was reported and said to be of concern for ‘sexualised behaviour’ and ‘stealing’. This was in the context of allegations that the father had brought prostitutes to the home.
108. On 13 September 2001, a Family Services Officer reported concerns about JA’s ‘sexualised behaviour’ and ‘stealing’. He was found to be a victim of continuing emotional and psychological abuse.
109. On 14 February 2002 JA was declared to be a child in need of care and protection. A report, issued 6 January 2003, recommended the order continue for a further 12 months. He exhibited what were assessed as “problems associated with his emotional and behavioural development”.
110. A psychological report of 8 May 2003 expressed concern about JA’s mental health. He alternated between being abnormally fearful and being violent and angry. By 22 November 2003 he was reported as making “good gains” but exhibited signs of post-traumatic stress disorder. As at 12 December 2003 he had been referred to Dr Teresa Foce, a child psychiatrist, for ongoing treatment. He had made “considerable gains with his behaviour” on medication. By 24 December 2004, JA was reported to have been “a lot more settled in 2004”. He was said to be “displaying far less aggressive outbursts and he is improving in his interactions on the playground [at school]”.
111. There was a further report, dated 13 April 2006, after the incident with GL, from Dr Foce. It does not address that incident. JA was reported to have been engaged in a number of incidents of disturbed behaviour –
… throwing rocks at other students, also furniture; he’d run away from school the previous week with another student; he’d got under one of the demountable buildings and proceeded to bang his head on the steel support and had been picking on other children.
112. JA had also been assessed by a psychologist as “having clinically significant levels of anxiety and depression”. I infer that Dr Foce was in agreement with this assessment. The history of her clinical involvement from 2003 to 2006 demonstrated great variations in JA’s behaviour. As at 6 March 2006, Dr Foce saw “great improvement”. She does not refer to, and may not have been aware of, the events of 19 January 2006. ….
Unfortunately [JA] has been exposed to extreme antisocial behaviour and drug taking behaviour initially by his father and later by his three older siblings. No doubt this places him at significant risk in the longer term.
113. It is unfortunate that Dr Foce was not asked to consider the accused’s behaviour on 19 January 2006 but I can only proceed to determine this case on the evidence before me.
114. I am left, on the evidence concerning JA’s background and behaviour, with the clear impression that, if he was an adult, I would conclude that his criminal responsibility, though not removed, was, at least, significantly diminished by mental dysfunction.
115. However, the accused is not an adult. He was but 11 years of age at the time of the acts committed by him which allegedly constituted the offences charged.
116. There is no evidence to support a conclusion that the accused did have the requisite guilty knowledge and some evidence tending against that conclusion. As the prosecution bears the onus of proving his criminal capacity beyond reasonable doubt, I am driven to the conclusion that it has not done so. As Earle J stated, as long ago as 1845, (R v Smith (supra)) in respect of a child under 14 years of age:
… that which is termed a malicious intent – a guilty knowledge that he was doing wrong – must be proved by the evidence, and cannot be presumed from the mere commission of the act.

Here endeth Criminal Law/Jurisprudence 101.

VYBerlinaV8 now_with_added grunt11:53 am 17 Jul 07

The biggest problem here is that two young people have now been sent the message that in the adult world, you can make excuses and get away with things that deep down, you know are wrong. Much of the bad behaviour you see in people is about boundary seeking – have we really provided a clear boundary here? Regardless of whether the offender was ‘deemed’ to know what they were doing, almost everyone (even kids) know that physically and sexually assualting someone is not the right thing to do. Our legal system has NOT managed this situation well.

totally agree nyssa76. i am tired of people not taking responsibility for their actions. it’s always someone else’s fault.

Then by your reasoning VicePope, if he does indeed re-offend, the victim can sue Justice Higgins, CAMHS and CARAU for failing to do their jobs.

I’m not talking “punishment”, I am talking psychiatric intervention. Simple really. This kid has issues, which need to be addressed now instead of when he is 22 and has a string of offenses to his name.

As for the victim, she is the one who will get my sympathy.

I’m sick of people saying “he/she had a bad home life” and that’s why they did what they did.

So do a lot of people and they don’t commit crimes.

This kid needs to be seen by a child psychiatrist immediately and his parents also need intervention or this cycle WILL continue.

Whether or not the accused was convicted then, accepting the truth of the allegation, the victim was still raped/sexually assaulted. That is the case if he was acquitted on the grounds applied in this case or on other grounds, if the prosecution decided not to run the case, if he was convicted, if he was given a month/a year/life imprisonment or executed. The victim is still damaged and that’s the real tragedy. Any feeling of vindication from conviction and pubishment of the offender is really a bandaid on a great wound.

Whatever happens to the alleged perpetrator should never let the rest of us lose sight of the greater role of society – to accept and help the healing of those who have been hurt.

Nyssa – my point is that any anti-social action has a thousand parents. Helping parents do their work better is a social good, but making them criminally liable for the crimes of others is problematic. (I have a vague recollection that pubishment of an offender’s social group is something that occurs in some indigenous societies. I also worry in a non-specific way about the compatibility of group punishment with any human rights arrangements to which Australia is a party).

VYBerlinaV8 now_with_added grunt11:00 am 17 Jul 07

VicePope – what about the victim? As usual, we have a bunch of debate (“If, say, the offender has been completely lacking in any form of moral compass or guidance, he or she cannot really be held responsible for getting lost.”), which does absolutely zero to support the victim, and to address what is clearly an issue with the offender.

We can argue the law as much as we like, but it won’t change the facts that:
a) The outcome of this type of legal action is inconsistent with society’s view; and
b) The offender clearly has issues, and these are not being dealt with.

The law is supposed to be a tool of society to maintain behavioural standards that the majority find acceptable. This case indicates that this is not what is happening. Amber is another example.

When all is said and done, any child under 18yo is the LEGAL responsibility of their parents.

When (or if) the girl’s parents sue them in civil court, it won’t be the child who financially contributes, it will be his parents.

So why is it ok in civil court but not in criminal court?

Teachers aren’t their parents. Yes they could have “seen” something, however this incident happened in mid JANUARY – no school. Teachers aren’t surrogate parents but had a teacher seen something and not reported it you know as well as I do that they could be sued by not only the girl’s parents but the attacker’s for failing to report it.

Again, this child needs help and had it been ordered by a judge, it may well have happened. However, I doubt his parents would “volunteer” to take him to therapy.

Thumper, I so agree with you there.

Bonfire and Pandy – and how would adding more violence to the problem help? Another kid will be hurt, and this time by someone who probably does know right from wrong. And then there’s the collateral damage arising from the violence. Nuh. Anger is understandable and I can’t imagine any sane person who would not accept that, but it’s best directed into helping the victim recover her life.

Nyssa – the card that was played here is one that is in the pack for a good reason – because we can’t lock up for punitive purposes people who have no idea of the consequences of their actions. The judgment suggests some intervention is and has been occurring, and that is a good thing. With any luck, this child will have been made conscious of concepts like right, wrong and empathy and persuaded to be even less likely than any random person to repeat his actions. The judgment also suggests (as I mentioned) that, even if the accused had been an adult, His Honour may have gone down the same track on the basis of mental incapacity. Defusing the bomb now is better than exploding it.

I had seen the bullying story your article referred to. It’s one of those that make me wonder if we need a debate about this particular kind of “vicarious liability” issue. My immediate response – that you can’t turn crummy parents into adequate ones by threatening them with gaol or financial punishment and that you will inflict mental harm on the offending child and his or her siblings by doing so – is probably too easy. I found it too hard to think through the nuances of parents who are mentally incapacitated or disturbed, brutalised, alcoholic, addicted, socially undeveloped etc to the point where their children overtake their capacity to take responsibility. Then I started wondering about liability of others generally – schools/teachers for students, carers for psych patients, gaolers for prisoners, adult children for parents with dementia etc.

Anyone seriously smart who wants to write about this is guaranteed one sale.

A little “light” reading for you VicePope:


Apologies to everyone else – brain’s too tired to do a proper link.

VicePope, the child needs help – be it medical, psychological or criminal.

Given that another child was ‘injured’, there should have been a mandated medical review of the child who committed the assault – whether he knew it was wrong or not. What concerns me now is that to him, it is considered ‘acceptable’ behaviour by society because he was not ‘punished’ or even given the chance to ‘repent’ (for lack of another word).

If we let this child go on his merry way, he may well assault another child when he is of the age to understand that what he does is/was wrong. Do we wait until then?

Do we say to his ‘alleged’ next victim – I’m sorry, we couldn’t do anything last time, he didn’t know it was wrong then but at 15yo, he knows now.

Why aren’t CAHMS or CARAU doing anything? Dr. Sue Packer was mentioned in the court documents as an “expert” in child abuse etc. Why didn’t she recommend counselling or intensive psychotherapy?

My guess is because they think he’ll ‘outgrow it’. My sympathies to his current victim and the possible ones to follow.

Can this boy be saved?

If not a severe beating will cure society from this scum.

Nyssa – the evidence described in the judgment certainly suggested that there were acts that would be criminal if committed by someone who knew right from wrong. But (on the court’s view) the accused is no more guilty of them than is the cockatoo who knocks bits off my trees. The judgment was replete with mentions of the various assessments and interventions that were happening. The real pity is that this did not happen in a decisive way until after the accused committed the acts in question and almost certainly damaged another child.

The evidence referred to suggests the father and siblings may have been part of the accused’s social problem. So, should they all be punished? If the mother left them behind, should she be punished too? What happened might have been prevented if there had been more observant and active teachers, so let’s gaol everyone who ever taught the kid? What about the producers of Law and Order: SVU and other sexual torture porn? Or the puppetmasters behind Big Brother? Or the loony adult timeslot advertisers of phone services? Or the dopes who stick sexual violence into computer games? One in, all in.

Or we can be sensible. We can have a debate about whether and in what circumstances a parent or guardian might be criminally, civilly or morally liable for the acts of their children, even if the child is not personally liable. It strikes me as an area for debate because avoiding unintended consequences (eg the child who commits a crime because he knows Mum will be punished for it) would be close to impossible.

if i was the father of the 12 yr old girl, id be applying rule .303

And, Nyssa, how could the judge impose a condition of treatment on a person who was not guilty? Or on the parents who were never charged with any offence? The problem of parental criminal or civil responsibility for their offspring is a really difficult issue of public policy. (Other threads have canvassed it in relation to schools). Some really good parents have kids who do terrible things. Some appalling uninterested parents have kids who are apparent saints. Some kids are smarter or more more emotionally manipulative than their parents. Some are, in effect, babies until somewhere in high school.

Vicepope – The kid was found not guilty because he wasn’t able to define “right and wrong”, it doesn’t mean that he didn’t commit the acts.

Irrespective of the “niceness” of the parents – if their child commits a crime they should be accountable.

The child needs psychiatric help – blind freddy could see there is a problem.

Toriness – maybe so, but His Honour thought otherwise. The test to be applied was stated to be s 26 of the ACT Criominal Code (other jurisdictions have something similar):
I am left, on the evidence concerning JA’s background and behaviour, with the clear impression that, if he was an adult, I would conclude that his criminal responsibility, though not removed, was, at least, significantly diminished by mental dysfunction.
(1) A child aged 10 years or older, but under 14 years old, can only be criminally responsible for an offence if the child knows that his or her conduct is wrong.
(2) The question whether a child knows that his or her conduct is wrong is a question of fact.
(3) The burden of proving that a child knows that his or her conduct is wrong is on the prosecution.

His His Honour noted:
31. There are two issues that arise from this formulation. First, whether the “conduct” is a reference to the specific conduct alleged to constitute the criminal offence. Second, whether “wrong” is a reference to a moral or legal standard or some synthesis of the two concepts.

If His Honour thought the test was not satisfied, it must have been because he did not accept that the accused knew that what he was doing was wrong and your proposition fails.

There is, as there must be, a distinction between laws applying to everyone and moral judgments affecting those who sign up to them. The law will not punish everything that an individual or even a large majority may consider wrong, and it cannot say that, in every case where a person has suffered through the acts of another that someone else (usually that other person but sometimes his parents or her guards or the body regulating a private activity) is criminally culpable. Some things fall into the chasm of being substantiable or probable on the facts, but lacking an essential component to establish criminal responsibility.

This, in His Honour’s view, was such a case. He may have got it wrong (for example, a lot of those positing seem to think he should not have believed the evidence about the accused’s state of awareness), but the judgment shows he dorected his mind to the evidence before him and the legal standards he had to apply. Sometimes that’s as good as it gets, and, in this case, there’s the worrying suggestion that, even apart from the accused’s age, he may have acquitted on the basis of the accused’s state of mind:
I am left, on the evidence concerning JA’s background and behaviour, with the clear impression that, if he was an adult, I would conclude that his criminal responsibility, though not removed, was, at least, significantly diminished by mental dysfunction.

regardless of legal argument, i think it’s pretty obvious he knew what he was doing was wrong – hence the use of another boy as a look out.

And nor do I want a debate on semantics. This is about the operation of the law, and you can hardly blind yourself to legal considerations when discussing it. An offence (other than for some issues of strict or absolute liability) requires a degree of intention and the accused could not, in His Honour’s view, have formed the necessary intention for any offence with which he was charged (either the alleged rape or the knife matter). He heard the evidence, I didn’t. Don’t know if you did, but it would have been a closed hearing I hope.

I would note that His Honour referred to the strong presumption against culpability for a child of this age and that some may interpret as critical his comments about evidence from a shrink that was not presented as being a reason for him being unable to displace the presumption. Without knowing what the shrink would have said, there’s no point in guessing whether it would have made a difference or which way.

The business of prosecution is not about trying to shoe-horn the facts into some offence but about working out what, if anything, is the right charge given the evidence and the public interest. In this case, given the charges being considered, the prosecution obviously considered this a serious matter. The prosecution ran it, and they lost. Maybe they would have done better with something else, but they would still have had to get over the intention problem.

He still held a knife to the throat of his victim.

If there is a hole in the law which enables him to commit this act, then it should be fixed.

For whatever reason, offering to slit somebody’s throat is a very serious offence. Just because it wasn’t for the purposes of rape, still retains the act of holding a knife to another’s throat.

Deprivation of liberty springs to mind.

In finding somebody not guilty of one offence, the magistrate is still liable to formally recognise any offence that was committed, if it forms the basis of his opinion.

In this case, it’s cut and dry, knife + throat = some kind of crime.

p.s. if its a chat about semantics you want, I’m not interested. This is my opinion about right and wrong. I have absolutely no idea how the court system works, nor am I going to bother with any research on the topic.

Different kids. Differemnt country. Different crime. I’m sure that if there was substantial evidence that the killers of James Bulger (I think that was the 2yo’s name) were unaware of right and wrong that the evidence would have been run in the court. And if it was accepted, they would have been not guilty, same as the alleged offender in this case.

If a court finds that someone does not have the requisite intention (and what that is will vary between offences and contexts with some statutory offences given a pretty low standard), the person must be not guilty.

If, say, the offender has been completely lacking in any form of moral compass or guidance, he or she cannot really be held responsible for getting lost. And looking at that kind of issue and the secondary inference to be drawn from it (knowledge of right and wrong) is a matter of fact, albeit with some exegesis from earlier decisions. The present case was trial by judge only, but I think a jury would have found this case a hard and divisive call because of the range of 11 year olds out there and the evidence of the kid’s perspective.

anyone remember the case of two 10 yr old boys torturing and murdering a 2 year old toddler in 1993 in UK? don’t tell me an 11 yr old is not capable of knowing threatening someone with a knife and trying to rape them is a criminal act and unacceptable. it is sad that the offender came from a bad home, but while that might be a reason for bad behaviour, it is not an excuse.

The DPP is also independent

Dont’ kid yourself. Not even Magistrate Doogan believes that. The DPP is Stanhope’s lap dog.


As I read it, he was acquitted of both the substantive offence and the threat offence (because he could not have formed the intention to commut the substantive offence. End of the section. I think.
The outcome is not really satisfactory, but I doubt whether any outcome would be. Other than in relation to sentencing, our law lacks shades of grey between the black of absolute and culpable guilt and the white of absolute innocence.

And, Nyssa, how could the judge impose a condition of treatment on a person who was not guilty? Or on the parents who were never charged with any offence? The problem of parental criminal or civil responsibility for their offspring is a really difficult issue of public policy. (Other threads have canvassed it in relation to schools). Some really good parents have kids who do terrible things. Some appalling uninterested parents have kids who are apparent saints. Some kids are smarter or more more emotionally manipulative than their parents. Some are, in effect, babies until somewhere in high school.

Possibly true, but since he wasn’t charged with those things I don’t think it was within the judge’s power to find him guilty of them.

The childs guilt with regards to rape may or may not have been proven, but the childs guilt of holding a knife up to another childs throat was established.

I believe it’s assault, or possibly attempted murder (if the prosecution establishes that a knife held to the throat is accepted as intent to murder).

Is this not a crime ?

By carrying the knife with the intent of conducting a crime (assault or murder), I believe this makes it premeditated.

Is this not also a crime on 2 accounts as an underager in possession of a knife is also a crime (hence the ban on selling knives to U18) ?

Being found not guilty on one charge doesn’t necessarily immediately rule out being not guilty of others.

James-T-Kirk9:31 am 16 Jul 07

Sepi – “I think some punishment should have been applied – a weekend in solitary in Quamby might scare him into thinking this type of behaviour is not a good idea.”

I knew a kid who spent a week in Quamby once when he was 13 – He learnt quite a bit about cars and breaking into houses that he didn’t previously know.

Keep the kids out of the juvenile system if you can. It’s better for society that way.

The decision should have included psychiatric treatment.

This child will re-offend if there is nothing in place to deal with why he did what he did – whether he is responsible or not (which he should).

His parents should also be made to take parenting classes and/or report to Child Protective Services every week.

If we don’t stop this now, it will get worse. We have basically told this child that he can use a knife as a weapon, threaten another person and then attempt a sex act without reproach.

As the mother of a 12yo girl, I am sickened by the whole thing and if it were my child, I would have demanded the boy get help.

Special G – maaaaate!
To get to be a judge, you need legal qualifications (a minimum of four years grinding study, open only to those who show a pretty good aptitude for study) and then a bucket of experience, usually at the bar. And then there’s an appointment process which weeds out the duds and most of those with an agenda. So, what’s left are a few people, with excellent, independent and focused minds. Then they listen to evidence (or instruct a jury to do so) and some really difficult arguments made by people who have a clue, like prosecutors and defence lawyers. Only then do they get to make a decision.

You make it seem like a random process where a judge makes a decision on “the vibe of the thing”. Maybe that would work in a society ruled by Alan Jones and Steve Price, but it’s hardly justice. It wouldn’t be good enough or at all fair and impartial.

If judges get it wrong, either party can appeal and should do so. In this case, the judgment suggests there was heavy analysis of legal capacity, and maybe His Honour got some that analysis wrong and applied the wrong test to the facts. (I don’t think so, but I’m an amateur at this stuff). If the prosecution thinks so, it can appeal. The DPP is also independent, and tends to apppeal only where there’s some suggestion of material error, not just because some of the populace might not like the decision.

As to whetehr His Honour can sleep at night, that’s his business. But it would be hard to sleep if one entertained a view that one had sent a child to a quasi-prison for something for which the child was not guilty.

ACT Courts are a load of shite. I don’t know how higgins sleeps at night.

Jellen – you mention we have it about right in Australia. Which state are you referring to?

JJJmonkey, With regards to actus reus and mens rea, even if they do not appear in the Crimes Act anymore, they are still tought and are widely considered as the basic ellements of guilt. A mate of mine has a son who does legal studies and they still put a big emphasis on these two phrases. Perhaps they do need to update the curriculum a bit.

neuter the parents would be an effective start.

I think we all agree that what happened was awful and that minimising this kind of stuff as far as possible is where we want to get to. Where we differ is on how best to achieve that, in particular whether or not punishment should be the most important factor in the legal treatment of young child offenders.

I’m saying let’s make sure we look at the big picture. By emphasising that point I don’t mean in any way to minimise or belittle the trauma that the victim may have suffered. I was trying to make the point that I think we have the overall balance about right in Australia in terms of balancing punishment and rehabilitation, and that to put too much emphasis on punishment is not the way to go from a societal point of view.

swamiOFswank2:18 pm 14 Jul 07

It amazes me that the 12 yo girl was very clear about the fact that what was happening to her was wrong and yet the 11 yo boys allegedly were not. Surely there are only a matter of months between their ages and therefore their understanding of such things.

My three year old knows its wrong to hit or hurt people with weapons (such as sticks, toys, cutlery etc) hence my difficulty with comprehending why an 11 year old would not understand at least that, and therefore be charged with ‘posess weapon in a public place with intent’ or the nearest relevant charge.

Taking into consideration the perpetrators ADHD, possible PTSD, genetic predisposition to the possiblity of Bipolar Disorder, as well as all of the features of neglect and abuse he’s been subjected to, it would be reasonable to propose that having been let off the hook entirely on this occasion, he presents something of a frightening risk to others in a future sense.

At the very least, this young fellow should have been required to be an active participant in sex-ed, as well as other education about why violence (regardless of whom its directed at) is wrong. Without some reasonable consequence, I imagine he’ll find himself in the new Bimberi facility, or the adolescent sex offenders residential program within the next few years. A dreadful outcome, really.

To the young lady concerned, congratulations on your bravery, courage and honesty – you’ve got what it takes to encourage others to speak out and pursue some kind of justice over similar issues. You go girl!!!

This is one of those really difficult cases. Assume the act was done, and no-one would disagree that it was a terrible thing. None of us can really know what the victim went through or is still going through. She is entitled to the greatest support society can offer.

But, the question is whether the alleged perpetrator was capable of forming the appropriate criminal intention. That’s a matter of fact, folks, and any teacher will tell you there is an enormous range of understanding (and culpability) among kids of the same age. His Honour reached a view that, in effect, the kid was not capable of forming even the truncated intent that is satisfactory for a conviction. In other words, he is no more guilty than would be a rabbit or a budgie. (Or, more poignantly, an adult with grossly impaired mental/perceptual function who had no idea what he or she was really doing). No guilt, no conviction, no penalty.

His Honour may have got it wrong, but judges aren’t generally idiots and they have precedents to consider, experienced lawyers before them and the evidence of expert witnesses. A reference to the case (2007-07-12 R v JA [2007] ACTSC 51 on http://www.courts.act.gov.au/supreme/search/judgments.asp) suggests the extent of the evidence considered and the balancing exercise required.

Let’s not allow the sympathy that we all feel for the victim to become a reason to seek punishment of someone who is not responsible for his actions. (I agree with everyone who has spoken of the bigger issues – like who should take moral responsibility for putting s-xual ideas into a child’s mind).

asp… I haven’t read the ruling, so I’m not going to comment on the validity of the decision, I was merely stating the law…

the actus reus (guilty act) and mens rea (guilty mind) of the offender

I can tell you though, in the re-writing of the Crimes Act into the Criminal Code, this definition no longer exists.

Jellen, obviously you’re one of those rent a crowd people who go and protest at every even for the point of it to bring up everything that was totally irrelevant. Either that or lay off whatever you’re drinking/smoking.

Most people’s point was that the law allows kids 10-17 yrs to get away with blue murder, only to allow them to do the same thing over and over. Justice is what is needed, even if it was legally enforced psychiatric help or some other proper intervention in this case.

Letting the little creep off scot free is sending a very bad message. One, he will re-offend with impunity, and two, the victim will feel totally messed up by “Justice” Higgins. Hopefully she will receive a VOC payment on two fronts: the initial crime, and then Higgins’ “judgement”.

jellen, lay off the turps and look at the facts.

No one is suggesting that this kid should be tried as an adult, nor do I beleive anyone here is suggesting that he receive an adult prison sentence. I don’t see what is wrong with making sure this boy spends a couple of nights behind bars in a youth detention facility and receives counceling. Reasonable measure, all with a view to reforming him and hopefully stopping him from doing anything like this again.

As ant pointed out, this kid planned this. He had a lookout on duty and had a weapon. Had he being physically able and some people had not come along, he would have succeeded in raping the girl. Are you (jellen) saying that just because he is a kid, we should let him rape, or at least attempt to rape, whoever he wants?

Jellen, you are not looking at the facts. What aobut the girl? Is she just throwaway trash, collateral damage in the very important life of this “child”? He didn’t steal something, he didn’t jaywalk.
He planned to rape a girl, he held a knife against her throat, and he posted a lookout.

this is no “child”.

Dear ‘law is a crock’ people,
What exactly do you propose as the optimum outcome in this awful case? Maybe we should lower the age for punishment to say, maybe 4 years old YEAH! Let’s copy America where they try kids “as adults”, and aren’t scared of executing kiddies who deserve it. BRING IT!
Let’s follow the lead of those fine countries that don’t wimp out from dishing out some just desserts to their kiddie criminals…
Surely that would be a fine list of countries – the kind of right thinkin’ places just right to bring up a family – the kind of place where kiddies know thier place and everything just works – let’s follow the yellow brick road to…:
the Democratic Republic of Congo,
Saudi Arabia,
Yemen and, drum roll, please,
the United States of America (USA)! WOO HOO!
That’s what I’m talking about – damn fine places each and every one.
OK- sold to the law is a crock people – we need to start up a petition and need to git ourselves on that list pronto! http://www.pucl.org/reports/International/2001/executions.htm

Hhaving read the transcripts there looks like there was was more than enough evidence to find the child guilty of one offence if not more and also the evidence to the fact that he knew what he was doing was wrong. But whether or not a child can be coached to say he didn’t know it was wrong is another story..

The most scary part is that this that child appears to be still in the custody of his mother and that the mother originally prevented the child from being interviewed.. While the transcripts do say that this child has been undergoing counselling for his problems, there’s not much preventing the child to drop out next week especially still living with this mother who seems to have had an influence on his life along with the abusive father. I would suggest the judgement with no enforced psychiatric help is a dangerous precedent to be setting, especially with the evidence against him. Likely to see this child again we are, while hoping this counselling will be successful, I will feel sorry for his next victim(s). The law is a crock.

The kid clearly formed the intention of raping the girl. He planned it out. He had a knife, and used it. He posted a lookout. This is one very scary kid. I’m sure we’ll see more of him. Our taxes at work, now and in the future.

that should read: kids are NOT capable of serious crimes

JJJ, True, although in this case, to me it is clear he knew or at least suspected that what he was doing was wrong.

In this case, the actus reus (guilty act) and mens rea (guilty mind) of the offender are clear. Like others have said, if he did not beleive what he was doing was wrong, why have a look out? The judge’s excuse that he was too young is very flimsy. I think if judges still beleive that young kids are capable of serious crimes, they need a reality check.

I think some punishment should have been applied – a weekend in solitary in Quamby might scare him into thinking this type of behaviour is not a good idea.

“I thought the age at which a child could be charged with a crime was ten. Unless this kid and his mate have a mental illness that means there mental age is less than their physical age, I don’t see how Higgins can say he was too young to know his actions were criminal.”

The age a child can be charged is 10… however between the ages of 10 and 14, the child has to be aware that what he was doing was wrong. So it is not an assumption just because he is over the age of 10, he can be charged.

Where is Howard and the army in this case?

Woody Mann-Caruso7:21 pm 13 Jul 07

I come for the hysteria, and stay for the rants.

Neanderthalsis i just nominated you for a pool room quote with that.

neanderthalsis3:51 pm 13 Jul 07

Ranting hysteria and public indignation are the core values of the RiotAct, Philbert. I would hazzard to guess that that is what keeps us punters coming back.

So, does the verdict mean that in two years time when he does it again, he can say that he had done it before and not got into trouble, so naturally assumed it is ok?

How’s that philbert83au?

Whose bloody site is this anyway 😉

philbert83au3:24 pm 13 Jul 07

Thanks for the article and link NTP, but can we have less hysteria and more news in the main article? Say what you like and judge-bash to your heart’s desire in commentary but keep it newsish out front. See the ABC link for how to do this.

The ruling is an interesting read. The judge goes into great detail of what it means to know that his actions were wrong.

An interesting point I picked up was that he had to consider what level of wrongness the child believed it was. Essentially that the child knew that it was very wrong rather than just impolite wrong or teacher said so wrong.

The judge also felt that the boy was suffering from a relevant mental dysfunction, he is already undergoing treatment.

It’s essentially stated that the sexualised behaviour was picked up from his father bringing prostitutes home. Over the same time period the boy was suffering from emotional and psychological abuse at home.

The boy did actually try to penetrate the girl but wasn’t able to do so. So he clearly knew how the act worked but wasn’t physically capable.

His history makes for a sad read. I suspect he’ll see the inside of a prison well before he reaches adulthood.

You know Stan after reading the ruling I sort of agree with it. Still think a guilty verdict with no punishment but counselling/monitoring would have been more appropriate.

shoot him.
shoot his parents and guardians.
shoot the judge,
DPP – shoot them.
The boy’s lawyer? yes thats right..shooting.
hell, shoot the young girl too.
Everyone should be shot.
I think you all agree with some part of this,
so shoot me.

Woody Mann-Caruso2:05 pm 13 Jul 07

It’s OK. They’ll probably catch him in his late 20s after he’s raped and murdered a whole string of women. Justice will be served!

“concluded the boy was too young to realise his actions were criminal, and while he had acted out sexual behaviour, he was clearly incapable of engaging in sexual intercourse”

I thought the age at which a child could be charged with a crime was ten. Unless this kid and his mate have a mental illness that means there mental age is less than their physical age, I don’t see how Higgins can say he was too young to know his actions were criminal.

And as for being too young to have sex. Well, one would hope. But a look at Wikipedia, at an article which cites reputable sources reveales that in a physical sence, a ten year old would be capable of it. And in the age of the internet, there would be every chance he has looked up how.

To be found not guilty is just wrong. I am not for a second advercating a prison term for someone so young, but certainly this kid needs counseling and appropriate punishment. What we don’t need is young kids getting away with this sh*t and then doing it again when they’re 20.

At the absolute LEAST a conviction should have been recorded even if no penalty applied. Court directed councelling and monitoring would seem sensible as well.

Unfortunately (according to the CT article) because the boy was found not guilty, he isn’t required to undergo any form of counselling or rehabilitation.

I just hope at the very least, the boy’s laywer is correct in saying the court process has knocked some sense into him.

Very sad case. He was expressing sexual behaviour at age seven. How? Where did he see it to copy? I agree with LG about the parents and would go further to charge them with abuse.

This kid won’t even get the psychiatric help he obviously needs. There is a loophole problem if the court can’t force treatment because he is technically not guilty.

Absent Diane1:14 pm 13 Jul 07

I agree with sentiments about penalising the parents..

Don’t know what you can do with an 11 year old kid to punish them and have them pumped out a well balanced kid at the end of the process. Even counselling would probably be better than nothing though

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