NT Courts debate age of criminal responsibility over 13-year-old’s slap

‘Is slapping a teacher morally wrong?’: Courts debate criminal responsibility over 13-year-old’s alleged assault.

A SPLIT-second decision ­during a schoolyard scuffle could have profound ramifications for youth justice in the Territory.

A 13-year-old girl who ­allegedly slapped her principal during a schoolyard punch-up has become the test case for the age of criminal ­responsibility in the Territory.

The teen, who cannot be named for legal reasons, was charged with assaulting a worker after allegedly whacking her principal while they were trying to stop her fighting another girl.

In November that charge was dismissed in the Youth Justice Court by Judge Elisabeth Armitage.

The court heard the then 13-year-old’s case was dismissed because she did not have the capacity to understand the slap was “morally” and “seriously wrong”.

But police have challenged the ruling, dragging the slap case into the Supreme Court.

On Thursday Justice Peter Barr assessed an appeal application from police, with Crown prosecutor Helen Spowart arguing the Youth Court decision put the test of criminal responsibility “too high” and therefore the decision was incorrect.

The court heard the Territory treated children under 10 as too young to be criminally responsible for their actions, while those over 14 were considered capable of understanding their actions unless proven otherwise.

For children aged between 10 and 14, the burden of proof falls on prosecutors to show they are able to understand their actions are not ­acceptable.

Ms Spowart said the test was if the child could tell right from wrong, while the youth court had used the measure of “morally wrong”, which was different to “naughty, mischievous, rude or legally wrong”.

She argued applying ­morality to the split-second slap was an incorrect application of the law, and the 13-year-old did not have to understand ethics to know that slapping her principal was bad.

Justice Barr said he also struggled to see how a slap fell into a immoral act. “Is slapping a teacher or a person in authority, is it a moral wrong,” he asked. “You often hear an expression, it might be from American English, ‘You’re way outta line’.

“(The slap) is an outrage against accepted behaviour, but I don’t think anyone would seriously describe it as immoral.

“It’s certainly not naughty, it’s not mischievous, it’s ­potentially rude and coming down to the code it would be legally wrong.

“There seems to be a ­significant grey area ­between morally wrong and naughtiness.”

But the 13-year-old’s barrister, Phillip Boulten, said the slap met the standards of being “morally” and “seri­ously” wrong as it breached community standards to the extent of needing criminal charges.

Mr Boulten said the decision to dismiss the case was in line with the Territory’s own laws and decisions by the higher courts.

“It’s not so much what an adult observer would think of this ... the focus is on the ­capacity of the accused child to understand whether they ought to do it or not,” he said.

“Naughty children do things and they get told that they ought not to do them ­because it’s naughty. And some children come to understand that some of the naughty things are regarded by adults as being very much more than naughty. It is that distinction that needs to be kept in mind.

“(And) the presumption at work here that a child accused is not an adult and does not have criminal responsibility, unless it is true beyond a reasonable doubt.

“The child’s ability to be able to engage in concepts of why it is they ought not to be doing something is at the heart of determining whether or not the presumption is being displaced.”

Justice Barr said this set an exceptionally high – if not ­impossible – bar of proving a child under 14 had the capacity of an adult to understand the “wrong”.

“They need to prove the person knew it was seriously wrong, it could never effectively allow a juvenile to be convicted of a less than serious offence,” he said.

Ms Spowart countered that the 13-year-old would have known her actions were wrong, having been suspended for a total of eight days, with her school record including 10 incidents of physical violence in the classroom, a series of schoolyard fights, and verbally assaulting a teacher.

Mr Boulten agreed it was clear the teen was disengaged, missing school 40 per cent of the time, performing badly in core subjects, and was getting into fights – with little evidence she was being given speciality support. But he said there was a big difference ­between a suspension and being charged by police.

“She had been suspended from the school for fighting on a number of occasions, but she didn’t love going to school anyway ... and she was welcomed back,” he said.

Mr Boulten said the critical slap occurred “in the spur of the moment” in an effort to continue her fight with the other girl.

“So it’s not as though she lined up the teacher, (or) walked on stage at the Academy Awards to slap them,” Justice Barr said, joking.

The judge said it was possible the 13-year-old did not understand why this slap was worse than other school ­infractions.

“A misunderstanding on her part that if fighting was ­inappropriate it was equivalent to wagging school,” he said.

Justice Barr said the complications of the legal case were “two contradictory decisions” between other appeals courts and the High Courts and the Territory’s “partial ­incorporation” of criminal liability acts.

“This is what this Crown appeal is about, this is about correcting a (potential) error as distinct from making an ­example of this one offender,” he said.

The matter was adjourned for a decision to be made at a later date. Legal professionals are following the case as if found in the girl’s favour, it could create precedent for any future youth crime matters.