5 days ago
Legal issues arise in the prosecution of a 13-year-old Chinese girl for murder
The prosecution of a 13-year-old Chinese girl for the stabbing murder of a fellow exchange student at Lake Macquarie will present extraordinary challenges for the state's justice system.
The prosecution of a child, who is also a foreign national, for murder is believed to be unprecedented in Australian legal circles.
"There are certainly examples of children being prosecuted for murder, but I have never heard of a Chinese girl in a situation like this. It's quite extraordinary," Professor John Anderson from the University of Newcastle's School of Law and Justice said.
Australia's youngest killer, known as SLD, was convicted of killing three-year-old Courtney Morley-Clarke on the Central Coast in 2001 when he was just 13.
He was released from prison in March this year after serving 22 years in custody.
For children over the age of 10 and under the age of 14, the common law presumption of doli incapax (incapable of wrong) applies to criminal offences - that is, children do not possess the necessary criminal intent to be held responsible for their actions.
This means the law presumes they cannot distinguish between right and wrong in a way that would make them legally culpable for a crime.
This can be rebutted by the prosecution if it can prove beyond a reasonable doubt that the child understood their actions were seriously wrong.
"If you look at the James Bulger case in England, those boys were 10 and 11 when they were prosecuted. There was a doli incapax argument raised in that case, but it was overcome," Professor Anderson said.
"Prosecuting a 13-year-old does raise lots of other issues in the criminal system in terms of establishing criminal responsibility, but it's not impossible. Certainly, a 13-year-old can be criminally responsible.
In addition to her age and nationality, the girl's fitness will be a further complication for prosecutors.
Magistrate Andrew Eckhold noted that the girl, who can not be named, appeared to be"severely unwell" and was taking "an extraordinary number of medications" when the case was mentioned in Broadmeadow Children's Court on Wednesday.
"Depending on what the mental health issues are, and if there is any psychiatric evidence, it then becomes a question of whether they (the defence) can raise the mental health defenses to murder, of which there are two - the mental illness defense or the defense of substantial impairment by mental abnormality, which is only available to murder, and would reduce murder to manslaughter if it was successful," Professor Anderson said.
Ultimately, the case will be determined in the NSW Supreme Court.
Newcastle-based lawyer Drew Hamilton said he believed that, given the recent push by NSW Chief Justice Andrew Bell to bring justice to the regions, there was a fair chance a future trial would be held in Newcastle.
Specialist resources will also have to be provided to ensure the girl is appropriately represented.
"As a Chinese foreign national and young person, she would be considered extremely vulnerable," Mr Hamilton said.
"She would need additional assistance from an experienced legal team, qualified interpreters, juvenile justice officers and allied health professionals.
If found guilty, further questions would arise as to whether the girl would serve her sentence in Australia or whether she could be transferred to China.
"Australia does have prisoner exchange programs with certain countries, but I think it would go over to the Foreign Minister. That would bring in very different types of negotiations," Professor Anderson said.
The prosecution of a 13-year-old Chinese girl for the stabbing murder of a fellow exchange student at Lake Macquarie will present extraordinary challenges for the state's justice system.
The prosecution of a child, who is also a foreign national, for murder is believed to be unprecedented in Australian legal circles.
"There are certainly examples of children being prosecuted for murder, but I have never heard of a Chinese girl in a situation like this. It's quite extraordinary," Professor John Anderson from the University of Newcastle's School of Law and Justice said.
Australia's youngest killer, known as SLD, was convicted of killing three-year-old Courtney Morley-Clarke on the Central Coast in 2001 when he was just 13.
He was released from prison in March this year after serving 22 years in custody.
For children over the age of 10 and under the age of 14, the common law presumption of doli incapax (incapable of wrong) applies to criminal offences - that is, children do not possess the necessary criminal intent to be held responsible for their actions.
This means the law presumes they cannot distinguish between right and wrong in a way that would make them legally culpable for a crime.
This can be rebutted by the prosecution if it can prove beyond a reasonable doubt that the child understood their actions were seriously wrong.
"If you look at the James Bulger case in England, those boys were 10 and 11 when they were prosecuted. There was a doli incapax argument raised in that case, but it was overcome," Professor Anderson said.
"Prosecuting a 13-year-old does raise lots of other issues in the criminal system in terms of establishing criminal responsibility, but it's not impossible. Certainly, a 13-year-old can be criminally responsible.
In addition to her age and nationality, the girl's fitness will be a further complication for prosecutors.
Magistrate Andrew Eckhold noted that the girl, who can not be named, appeared to be"severely unwell" and was taking "an extraordinary number of medications" when the case was mentioned in Broadmeadow Children's Court on Wednesday.
"Depending on what the mental health issues are, and if there is any psychiatric evidence, it then becomes a question of whether they (the defence) can raise the mental health defenses to murder, of which there are two - the mental illness defense or the defense of substantial impairment by mental abnormality, which is only available to murder, and would reduce murder to manslaughter if it was successful," Professor Anderson said.
Ultimately, the case will be determined in the NSW Supreme Court.
Newcastle-based lawyer Drew Hamilton said he believed that, given the recent push by NSW Chief Justice Andrew Bell to bring justice to the regions, there was a fair chance a future trial would be held in Newcastle.
Specialist resources will also have to be provided to ensure the girl is appropriately represented.
"As a Chinese foreign national and young person, she would be considered extremely vulnerable," Mr Hamilton said.
"She would need additional assistance from an experienced legal team, qualified interpreters, juvenile justice officers and allied health professionals.
If found guilty, further questions would arise as to whether the girl would serve her sentence in Australia or whether she could be transferred to China.
"Australia does have prisoner exchange programs with certain countries, but I think it would go over to the Foreign Minister. That would bring in very different types of negotiations," Professor Anderson said.
The prosecution of a 13-year-old Chinese girl for the stabbing murder of a fellow exchange student at Lake Macquarie will present extraordinary challenges for the state's justice system.
The prosecution of a child, who is also a foreign national, for murder is believed to be unprecedented in Australian legal circles.
"There are certainly examples of children being prosecuted for murder, but I have never heard of a Chinese girl in a situation like this. It's quite extraordinary," Professor John Anderson from the University of Newcastle's School of Law and Justice said.
Australia's youngest killer, known as SLD, was convicted of killing three-year-old Courtney Morley-Clarke on the Central Coast in 2001 when he was just 13.
He was released from prison in March this year after serving 22 years in custody.
For children over the age of 10 and under the age of 14, the common law presumption of doli incapax (incapable of wrong) applies to criminal offences - that is, children do not possess the necessary criminal intent to be held responsible for their actions.
This means the law presumes they cannot distinguish between right and wrong in a way that would make them legally culpable for a crime.
This can be rebutted by the prosecution if it can prove beyond a reasonable doubt that the child understood their actions were seriously wrong.
"If you look at the James Bulger case in England, those boys were 10 and 11 when they were prosecuted. There was a doli incapax argument raised in that case, but it was overcome," Professor Anderson said.
"Prosecuting a 13-year-old does raise lots of other issues in the criminal system in terms of establishing criminal responsibility, but it's not impossible. Certainly, a 13-year-old can be criminally responsible.
In addition to her age and nationality, the girl's fitness will be a further complication for prosecutors.
Magistrate Andrew Eckhold noted that the girl, who can not be named, appeared to be"severely unwell" and was taking "an extraordinary number of medications" when the case was mentioned in Broadmeadow Children's Court on Wednesday.
"Depending on what the mental health issues are, and if there is any psychiatric evidence, it then becomes a question of whether they (the defence) can raise the mental health defenses to murder, of which there are two - the mental illness defense or the defense of substantial impairment by mental abnormality, which is only available to murder, and would reduce murder to manslaughter if it was successful," Professor Anderson said.
Ultimately, the case will be determined in the NSW Supreme Court.
Newcastle-based lawyer Drew Hamilton said he believed that, given the recent push by NSW Chief Justice Andrew Bell to bring justice to the regions, there was a fair chance a future trial would be held in Newcastle.
Specialist resources will also have to be provided to ensure the girl is appropriately represented.
"As a Chinese foreign national and young person, she would be considered extremely vulnerable," Mr Hamilton said.
"She would need additional assistance from an experienced legal team, qualified interpreters, juvenile justice officers and allied health professionals.
If found guilty, further questions would arise as to whether the girl would serve her sentence in Australia or whether she could be transferred to China.
"Australia does have prisoner exchange programs with certain countries, but I think it would go over to the Foreign Minister. That would bring in very different types of negotiations," Professor Anderson said.
The prosecution of a 13-year-old Chinese girl for the stabbing murder of a fellow exchange student at Lake Macquarie will present extraordinary challenges for the state's justice system.
The prosecution of a child, who is also a foreign national, for murder is believed to be unprecedented in Australian legal circles.
"There are certainly examples of children being prosecuted for murder, but I have never heard of a Chinese girl in a situation like this. It's quite extraordinary," Professor John Anderson from the University of Newcastle's School of Law and Justice said.
Australia's youngest killer, known as SLD, was convicted of killing three-year-old Courtney Morley-Clarke on the Central Coast in 2001 when he was just 13.
He was released from prison in March this year after serving 22 years in custody.
For children over the age of 10 and under the age of 14, the common law presumption of doli incapax (incapable of wrong) applies to criminal offences - that is, children do not possess the necessary criminal intent to be held responsible for their actions.
This means the law presumes they cannot distinguish between right and wrong in a way that would make them legally culpable for a crime.
This can be rebutted by the prosecution if it can prove beyond a reasonable doubt that the child understood their actions were seriously wrong.
"If you look at the James Bulger case in England, those boys were 10 and 11 when they were prosecuted. There was a doli incapax argument raised in that case, but it was overcome," Professor Anderson said.
"Prosecuting a 13-year-old does raise lots of other issues in the criminal system in terms of establishing criminal responsibility, but it's not impossible. Certainly, a 13-year-old can be criminally responsible.
In addition to her age and nationality, the girl's fitness will be a further complication for prosecutors.
Magistrate Andrew Eckhold noted that the girl, who can not be named, appeared to be"severely unwell" and was taking "an extraordinary number of medications" when the case was mentioned in Broadmeadow Children's Court on Wednesday.
"Depending on what the mental health issues are, and if there is any psychiatric evidence, it then becomes a question of whether they (the defence) can raise the mental health defenses to murder, of which there are two - the mental illness defense or the defense of substantial impairment by mental abnormality, which is only available to murder, and would reduce murder to manslaughter if it was successful," Professor Anderson said.
Ultimately, the case will be determined in the NSW Supreme Court.
Newcastle-based lawyer Drew Hamilton said he believed that, given the recent push by NSW Chief Justice Andrew Bell to bring justice to the regions, there was a fair chance a future trial would be held in Newcastle.
Specialist resources will also have to be provided to ensure the girl is appropriately represented.
"As a Chinese foreign national and young person, she would be considered extremely vulnerable," Mr Hamilton said.
"She would need additional assistance from an experienced legal team, qualified interpreters, juvenile justice officers and allied health professionals.
If found guilty, further questions would arise as to whether the girl would serve her sentence in Australia or whether she could be transferred to China.
"Australia does have prisoner exchange programs with certain countries, but I think it would go over to the Foreign Minister. That would bring in very different types of negotiations," Professor Anderson said.
