Scot-free: The legal bombshell that could free baby-faced Scots College private schoolboy accused of the gang rape that outraged Australia
A rarely-used mediaeval law on the age of criminal responsibility could be invoked in the case of three Scots College students charged with raping a 14-year-old girl.
But the legal presumption would apply only to the youngest of the three boys, who police allege sexually assaulted the girl in a Bondi Junction alleyway last month.
The ‘doli incapax’ law – Latin for ‘incapable of evil’ – has its roots in common law dating back to the Middle Ages, but is still used in current criminal cases in Australia.
The age at which it applies varies between states and territories, but in NSW, children under 14 are legally presumed not to possess the capacity for criminal intent.
No Australian child under ten can be charged, but children in their pre- and early teens cannot be held criminally responsible if they do not understand their actions to be morally wrong.
Only the youngest of the Scots College Three would qualify under the law, with the other two, both Year 8 students, having already turned 14.
All three boys have been charged with aggravated sexual assault in company against the schoolgirl between 7.30pm and 8.25pm on July 22.
The 13-year-old has been charged with two counts of aggravated sexual touching, as has one of the 14-year-olds. The third boy, also 14, faces one count of aggravated sexual touching.
The youngest boy of the Scots College Three (above arriving with his family at Surry Hills Children’s Court on Tuesday) can be legally presumed not to possess the capacity for criminal intent under doli incapax
The 14-year-old Scots boy charged with aggravated sexual assault and two counts of aggravated sexual touching arrived at court in a black Mercedes SUV
Lawyer John Sutton (above leaving Surry Hills Children’s Court) represents the 13-year-old Scots College boy accused of raping the teenage girl in a Bondi Junction alleyway last month
No pleas have been entered and all boys are on bail, with strict conditions not to contact the alleged victim and not to enter Bondi Junction.
However the 14-year-old charged with three offences may now attend an address in the suburb for a specific purpose, and only when accompanied by his father.
Judge Sue Duncombe granted the variation after his lawyer, Sydney solicitor Kiki Kyriacou, applied in the Surry Hills Children’s Court on Tuesday.
The court heard that apprehended violence orders taken out by NSW Police against all three boys to protect the alleged rape victim included a provision not to approach within 200m of a specified address.
While all three boys are forbidden from contacting the alleged victim, the 13-year-old must also not assault or threaten her, stalk, harass or intimidate her, or recklessly destroy or damage any property or harm any animal that belongs to her.
The families of two of the boys, but not the third, have engaged a prestigious specialist law firm to protect the identities of the accused, which Judge Duncombe emphasised was crucial on Tuesday.
The youngest accused – represented by solicitor John Sutton – could elect to cite doli incapax even after he turns 14 as the case progresses.
The law was not formally written down in English statutes until the 1600s, when it was noted that a child is incapable of committing a crime due to a lack of understanding of the difference between right and wrong.
Parents of students at the prestigious $54,000-a-year Scots College have been rocked by the allegations against three boys regarding a 14-year-old girl
Lawyer Trent Park represents one of the 14-year-old boys charged with sexual touching and aggravated sexual assault allegedly committed in a Bondi Junction alleyway
The three Scots boys allegedly assaulted the teenage girl in a small thoroughfare in Bondi Junction on the night of July 22, police claim
Doli incapax is a legal presumption that can be rebutted, meaning it is assumed a child between 10 and 13 or 14, depending on the jurisdiction, cannot be found guilty of an indictable crime.
That is unless the prosecution proves, beyond reasonable doubt, that the child was capable of determining the difference between right and wrong at the time of the offence.
The doli incapax presumption was legally tested a decade ago when an 11-year-old boy was convicted for sexually assaulting his younger brother after the trial judge believed the offender knew his conduct was seriously wrong.
A NSW Court of Criminal Appeal upheld the conviction, but the High Court found that the boy – later assessed as being of borderline intellectual disability – did not have the moral maturity to understand his conduct.
According to the NSW Judicial Commission, proof of guilt ‘requires that the child appreciated the moral wrongness of the alleged offence, as opposed to being aware that the conduct was merely naughty’.
‘The prosecution bears the onus and must prove, beyond reasonable doubt, that the presumption (of doli incapax) does not apply,’ it found.
In other jurisdictions such as Alice Springs in the Northern Territory – where the law applies between the age of 10 and up until 14 – reciting ‘doli incapax’ at police is now standard among kids who roam the streets.
The three accused Scots boys have been remanded on bail until October 20, although they are not required to physically appear in court on that date if they are legally represented.
