"This is a stain on our nation," criminal lawyer and child advocate Shahleena Musk said.

SW ran around the tree and continued to watch. "Dr Westerman said children at the age of 10 followed rules largely because they did not want to get into trouble, not because they fully understood the concepts of doing the right thing.She said the money governments invested imprisoning children would be better spent on early interventions to support them. Of course there is still dispute as to whether it was without consent, whether [BP] knew that there was an absence of consent and the Crown still has to establish beyond reasonable doubt that [BP] knew that (a) there was no consent and (b) that what he was doing was a serious wrong and not just mucking around, if you like, to use an expression which I suppose was current when I was a kid, I do not know whether it still is, but mischief or simple naughtiness.Again the Crown charges that on the basis of [BP] doing the act, [SW] providing the support being an aider and abetter in circumstances of aggravation, that is they were in company, [SW] close enough to support [BP]. This is not the trajectory we want for vulnerable children or the best way to keep our communities safe. The rule acted as a bar to criminal prosecution of a child under 10 years of age. I could say that it was a daily occurrence that I would speak to [BP] about his behaviour, and on these many occasions I told [BP] that what he was doing was wrong, and unacceptable in our society. SW did this, and BP laughed and kept moving his fingers. Section 5 of the Children (Criminal Proceedings) Act 1987 states that no child under the age of 10 can ever be found guilty of an offence. Doli incapax is a rebuttable presumption that 10- to 14-year-olds do not understand their alleged behaviour is seriously wrong, as opposed to just naughty or mischievous.

"Australians need to stand up and care because it is disadvantaged citizens who feel the brunt of this law.

He did not hear LD cry or scream from behind the tree, although he did say that afterwards she was upset.14 A medical practitioner Dr. Caine gave evidence of an examination of LD on 5 November 2003, at which he found superficial scratches on her legs and left buttock, and found the genital area normal and consistent with either consensual or non-consensual digital and penile penetration.15 Detective Leading Senior Constable Ismay gave evidence that he saw LD and her aunt at Kempsey Police Station at about 2.30 pm on 5 November 2003, and that LD appeared upset, and was crying and red in the face.

Again, in my opinion it is of some significance that no complaint about this direction was made at the trial.37 Mr. Button’s submissions for SW on the second ground of appeal raises more difficult questions. Required fields are marked Our team attends courts across Sydney and throughout NSW. The third count charged BP alone, and was based on an allegation of digital penetration. Doli incapax means a presumption that a child is "incapable of crime" under legislation or common law. "I was sent there for 11 and a half months because I was staying with a friend in Darwin," he said. LAW ON DOLI INCAPAX 27 The common law concerning the criminal responsibility of children has been modified in New South Wales by s.5 of the Children (Criminal Proceedings) Act 1987 (which provides for a conclusive presumption that no child under the age of 10 years can be guilty of an offence), but not otherwise. You have to determine, from a review of the evidence, whether it is satisfactorily proved, that is beyond reasonable doubt, that at the time [BP] did that which he is accused of doing, put his finger or fingers into [LD] behind the tree, if you find that was done, that he had a guilty knowledge that he was committing a crime.

"When you have nine jurisdictions at CAG you could have nine different responses, so I don't know whether there will be a consensus, but a decision will be made one way or other," he said.He said he was yet to be personally convinced that reforms were needed. We thank you for your understanding.

""If we stop being stagnant, and change this system, we can break this vicious cycle where First Nations people are locked up and don't have a voice," he added.Psychologist and Nyamal woman Tracy Westerman, who is the managing director of Indigenous Psychological Services, said the normalisation of criminality at an early age was robbing children of their possible futures.As a child welfare officer in Western Australia many years ago, Dr Westerman said she had seen "really horrific examples" of children being criminalised for being unlucky enough to be born into circumstances of poverty.



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