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Playing rough.

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Thursday 22 July 2004

Deborah Ambery, visiting research scholar, Social Change Research Centre, University of Western Sydney


Playing Rough  

The prevailing constructions of childhood which have informed criminal justice policy and practise with regard to children have centred around a series of dichotomies; ‘reason’ vs. ‘unreason’, ‘innocence’ vs. ‘experience’, ‘nature’ vs. ‘culture’ and ‘welfare’ vs. ‘justice’. They are constructed as adults in the making, socially valued as the future of the social order but not yet possessed of the knowledge which would enable them to practise as fully functioning adult citizens. In criminal justice, the concept of doli incapax is based in itself on a construction of the child as innocent, as literally ‘incapable of wrong’. Recent developments in juvenile justice have taken a critical view of conventional constructions of the ‘innocent’ child. 


The idea of ‘innocence’ is a central quality in the social construction of childhood. Primary signifiers relating to this construction are physicality and embodiment, and knowledge and awareness. A child who kills another child clearly challenges these central signifiers. Their physical capacity to inflict harm on another child clearly denies them any dependent physicality, and their act is such that those observing, reporting on and judging that act within society feel obligated to apportion knowledge of its consequences. The child who kills another child is no longer innocent but is dangerous and knowing and is in many respects no longer a Child. Children who kill other children are rare. However, there have been several highly publicised cases of children killing children.  


In March 1998, Corey Davis, aged 6, was found drowned in the Georges River at Macquarie Fields, Sydney, NSW. Corey had been thrown in the river by an older boy aged 10. Senior NSW Children’s Magistrate Stephen Scarlett found initially that the evidence was insufficient to justify a trial before a jury of the NSW Supreme Court, citing the unreliability of the two prime witnesses, both aged 6, as well as the unease at the concept of a 10 year old being out on trial for manslaughter. The DPP, however, directed the boy be charged ex officio and stand trial for manslaughter. A Supreme Court jury subsequently found the boy not guilty.  


In 1998, in the UK, the doli incapax was removed as a direct response to the Bulger case, where popular emotion, media sentiment and political will all came together with the same response: those who commit such acts are NOT children. The child who by his/her actions has forfeited the legal protection of childhood and as such is seen to require a different set of responses from the legal system.  


In Australia the age of criminal responsibility is ten, as it is in the UK. However, as with the Bulger case and the retributive and punitive responses to it, the Attorney General’s Department initiated a review of the doli incapax and the age of criminal responsibility in response to the Corey Davis case. Currently the doli incapax protects children between 10-14 years old by providing a rebuttable presumption whereby the prosecution has to prove beyond reasonable doubt that the child knew the difference between ‘right’ and ‘wrong’. Debate ensued regarding the lowering of the doli incapax from 14 to 12. In 2000 the Attorney General’s Department, Criminal Law Review Division rejected the proposed lowering of the age limit and recommended that the status quo be maintained.  


If, as noted earlier, children who kill are rare, why then remove or reduce the doli incapax? Children have been prosecuted and found guilty, which suggests that the doli incapax does not present a bar to prosecuting children. For example, in 2002 on the Central Coast a 13 year old boy abducted 3 year old Courtney-Morley Clarke from her bed and stabbed her because her parents were ‘always telling him to keep off their grass’. The boy was sentenced to 20 years jail.  


If children are adults in the making, what kind of adulthood are we advocating for our children? If we are prepared to sentence a child to jail for 20 years, as in the case cited above, what kind of adult will this child become? Popular wisdom holds that children are maturing faster than their historical counterparts due to access to technology, but this must surely be assessed in comparison to the children of the industrial revolution, who accepted the responsibilities of adulthood and work at a now inconceivably young age. 


Two questions remain for legislators when examining the status of children who commit serious violent offences. Firstly, is the prevailing social construction an accurate account of childhood as it is experienced today? Secondly, have changes in education and technology legitimately changed the nature of children and the level of their social ability sufficiently to warrant a fundamental change in the way the law views their culpability for their actions?  


Guests on this program:

Dr Deborah Ambery  

Course Co-ordinator, B.Soc. Sc (Criminal Justice) 

Charles Sturt University, Bathurst. 

Visiting Research Scholar,  

Social Justice, Social Change Research Centre 

University of Western Sydney, Bankstown. 


September 2004 

Visiting Research Scholar 

Norwegian University of Science and Technology 

Trondheim, Norway.