Boy, 13, should have terror charges withdrawn because he’s under the age of criminal responsibility, court hears

A teenager charged with terror offences should have his charges withdrawn because he’s under the age of criminal responsibility, a court has heard.

A teenage boy allegedly busted with extremist material should have the charges thrown out because he is too young to understand his actions were criminal, a court has heard.

Appearing in the Adelaide Youth Court on Thursday afternoon, the 13-year-old boy, who cannot be identified for legal reasons, and his parents sat silently as Magistrate Tracee Micallef heard his lawyer could soon seek to have the extremist charges withdrawn.

The southern suburbs boy has been charged with one count of having possession of extremist material after his arrest on July 4 “following an investigation”.

Joseph Henderson, for the boy, asked the court to free his client of any bail obligations, and told prosecutors he intended to argue the charges should be withdrawn unless they could prove the boy was aware his actions were criminal in nature.

“Doli incapax is a very live issue in respect to this matter,” Mr Henderson said.

“I understand that at present there is no evidence to rebut the presumption of doli incapax.”

The 13-year-old has been charged with terror offences Picture: Isabel McMillan

He appeared in court again on Thursday. Picture: Isabel McMillan

In Australia, doli incapax is a Latin phrase used to describe the common law principle that a child aged under 14 cannot be held criminally responsible for their actions.

“I should also say that my ultimate position in fact is that my client should not be living on bail at all, I say that because doli incapax is an element of the offence that the prosecution need to rebut,” he said.

“The appropriate position would be for the prosecution to withdraw the charge and relay it once they have the evidence they need to establish the charge.”

Prosecutors however argued the boy should still be constrained to the original conditions of his bail, claiming he is not only a risk to the community, but to himself.

The court previously heard prosecutors were concerned for the teen’s mental health because he was “susceptible to negative influence”.

At the last hearing, defence counsel for the teen – who is believed to be on the autism spectrum – said the arrest was “a wake-up call for the family”.

“He’s sometimes not sure what’s going on or why he feels certain things,” they said.

“He’s struggling quite a bit (in adult custody).”

Ms Micallef said she did not have reason to withdraw the boy’s bail altogether, but advised prosecutors they were now “on notice” to provide evidence of doli incapax.

“I have received a report that is very favourable in regards to the parent’s approach to the matter, and it seems there have been a lot of things put in place in regards to protecting the youth’s mental health and wellbeing.

“It was one of the things I had concerns about on the last occasion as to what could be done for him while he’s on bail, recognising his age and how the matter would progress.”

The boy was remanded on continuing bail to face court again in August.

Originally published as Boy, 13, should have terror charges withdrawn because he’s under the age of criminal responsibility, court hears