Justification and Excuse

Question 1

Justified
and
Protected from criminal responsibility

Definitions

Answer 1

Justified
The person is not guilty of an offence and is not liable civilly

Protected from criminal responsibility
The person is not guilty of an offence but civil liability may still arise.

Question 2

Burden of Proof

Child under 10

Answer 2

A child aged under 10 years has an absolute defence to any charge brought against them.

Of note

Nevertheless, even though the child cannot be convicted, you still have to establish whether or not they are guilty.

Question 3

Burden of Proof

Child aged 10-13 years

Answer 3

For children aged between 10 and 13 years inclusive, it must be shown that the child knew their act was wrong or contrary to law.

Of note

This test of knowledge is in addition to the mens rea and actus reus requirements. If this knowledge cannot be shown, the child cannot be criminally liable for the offence.

Question 4

R v Forrest and Forrest

Proof of age

And R v Clancy - Summarise

Answer 4

R v Forrest and Forrest

The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victim’s age.

Of note

R v Clancy

The best evidence as to the date and place of a child’s birth will normally be provided by a person attending at the birth or the child’s mother … Production of the birth certificate, if available, may have added to the evidence but was not essential.

Question 5

Filing charges against children/young persons

Process

Answer 5

Charges are filed in the District Court, the first appearance takes place before the Youth Court and the case then automatically transfers to the High Court for trial and sentencing.

Of note

Option to prosecute for certain serious offences
where the offence is punishable by 14 years to life imprisonment or where the child is 12 or 13 years, is a previous offender (for a serious offence) and the offence is punishable by 10 years to 14 years imprisonment.

Question 6

Imprisonment for Children/young persons

Answer 6

Children can be sentenced to imprisonment for murder or manslaughter

Young persons can be imprisoned for murder, manslaughter, category 4 offences and category 3 offences for which the maximum penalty available is or includes imprisonment for life or for at least 14 years.

Question 7

From whom should you seek advice in relation to questioning of children and young persons?

Answer 7

District Youth Prosecutor

Question 8

As a general rule, who should all child offenders be referred to?

Answer 8

The Care and Protection Coordinator until the reach the age of 14 years

Question 9

If a 9 year old murders somebody what action should be taken?

Answer 9

Consider having the child and family dealt with as a Care and Protection matter.