Operation Trident squad police have been told if they arrest a child under 14-years of age, and cannot provide evidence that the offender knew their actions were wrong, the investigating officer will be referred to ICAC.
The direction was allegedly delivered to Darwin Operation Trident officers by Department of Public Prosecutions managing summary prosecutor Erin McAuley with support from NT Police Judicial Operations Section Senior Sergeant Sally-Anne Nicholas, about three weeks ago in a meeting, a well-placed source told the NT Independent.
Officers were told arrests of young offenders under the age of 14 must be done with enough evidence to rebut the legislative presumption that they are unable to know their actions are wrong – a principle known as doli incapax.
Doli incapax means someone is deemed incapable of forming the intent to commit a crime unless there is strong evidence to prove that they understand what they did was wrong.
The warning means police would be unable to arrest child offenders on the spot.
Operation Trident was launched in September 2012 targeting recidivist offenders, property offenders, people accused of assaults and anti-social behaviour and was to run for four weeks in Darwin, Katherine and Alice Springs.
It is now the police’s property crime unit in Darwin but because about 90 per cent of property crime is committed by minors, it unofficially focuses on youth offending.
The police source said officers took the directive from the DPP as a threat and a warning not to make certain arrests, which would leave perpetrators on the street to possibly commit more crimes.
“Essentially that means that if a youth under 14 rapes someone and if you can’t rebut doli, then you shouldn’t arrest them,” the source said.
“How fucked up is that?
“We aren’t allowed to interview youth anymore because of the changes to the Youth Justice Act. We can’t rebut by way of discussing right versus wrong in an interview.
“And they want police to get school records. How do you get that if they don’t go to school?
“Get a statement off their parents? They don’t stay at home, they wander the streets. So, you can never rebut it.
“But the youth wear gloves, cover their faces and change clothing [and other things]. That is all the ways these youth are showing they know forensic counter measures and not being identified. That is how I would rebut it, but prosecutions in Darwin aren’t accepting that.
“They say ‘tough on crime’ doesn’t work. That’s funny, I’ve never seen tough on crime.
“Last time I checked we made an oath to serve and protect the people of the Northern Territory, without fear or favour.”
The Youth Justice and Related Legislation Amendment Bill 2019 changed the way police could conduct interviews. It meant police can only interview alleged youth criminals after they have informed them of their ability to access legal advice, provided access to legal advice in a place and manner that affords privacy, and informed the young person that a friend, relative, responsible adult or support person may be present during the interview.
Furthermore, if the youth exercises their right to silence, the interview has to stop.
The source said previously officers were obligated to offer the opportunity for the young person to speak to a lawyer but the youth could refuse speaking to someone. Now it is mandatory.
“Now they must speak to a legal representative before speaking to police,” the source said.
“So, police call up either the Custody Notification Service (CNS) for Aboriginal persons or Northern Territory Legal Aid Commission.
“Now the person that works for CNS, all they need to work in that position is a driver’s licence and an ochre card. They are the one giving ‘legal advice’.
“Now CNS was supposed to be designed to inform North Australian Aboriginal Justice Agency (NAAJA) that an Aboriginal person was in custody and now they use it as a ‘back channel’ to tell them not to do interviews.
“So essentially no Aboriginal person does interviews anymore because some person with no legal background is telling people not to do interviews. It’s just a shit system now.
“The crazy thing is even if they are telling police they are innocent, or have a defensive conduct claim [a claim of self defence], the admin person at the other end is saying ‘don’t do an interview’. It’s insane.”
The CNS, which began on July 31, 2019, is a 24-hour system operated by NAAJA, where about half the staff are Aboriginal.
“The CNS plays an important safeguard for Aboriginal people in police custody,” NAAJA chief executive officer Priscilla Atkins told National Indigenous Times in August last year.
“Some of the best outcomes for Aboriginal people over the past 12 months have occurred when the police have worked with the CNS to best assist the person in their custody.”
The service was recommended by the royal commission and NAAJA says its aim is to prevent Aboriginal deaths in custody.
The police source said there was sometimes a massive delay in getting a CNS which put those in custody at risk.
“Sometimes they don’t call back. A youth or an adult Aboriginal person can be sitting in a cell for hours. I’ve seen people waiting more than five hours,” they said.
“It’s interesting though because most deaths in custody are as a result of being placed into ‘protective custody’ but CNS don’t care about those people, just the ones that need to do interviews.”
Neither the Department of Public Prosecutions or the NT Police would answer the NT Independent’s questions about the directive given to officers.
The age of criminal responsibility
The age of criminal responsibility in the Northern Territory and across Australia, except for the ACT, is 10-years old. In August 2020, the ACT raised the age to 14. In November 2018, the Council of Attorneys-General agreed to consider raising the age of criminal responsibility to 14, but in July 2020 decided to delay the decision for a year, saying they needed to develop processes and ways to support young offenders before the age of criminal responsibility could be increased.
The issue was dropped off the agenda for the coming 12 months in April this year.
“The minimum age of criminal responsibility is primarily an issue for states and territories, as the overwhelming majority of offences involving children are state and territory, not Commonwealth, offences,” an unnamed department spokesperson told the ABC earlier this year.
In 2019, the UN Committee on the Rights of the Child recommended 14 years as the minimum age.
Under section 43AQ of the NT Criminal Code Act 1983, children between 10 and 14 “can only be criminally responsible for an offence if the child knows that his or her conduct is wrong”.
It goes on to state the question of whether a child knows that his or her conduct is wrong is one of fact and the burden of proving that is on the prosecution.
Under the Department of Prosecutions Act’s directors directions to police, police are given a legal authority for laying charges and prosecuting people in lower courts, but two criteria must be met. It must be in the public interest and there must be a reasonable prospect of conviction.
A Criminal Lawyers Association of the Northern Territory paper from July 2019 describes, doli incapax as starting off as a common law principal but incorporated into the NT criminal code, “creating a rebuttable presumption that children between the age of 10 and 14 are incapable of committing any offence unless there are strong and cogent evidence to prove that they understand what they did was seriously wrong”.
It states, it is in effect because “all civilised societies” consider young people as less blameworthy than adults and should protect them “against the full rigour of the law”. Police cannot just assume the child has the capacity or knowledge to know what they were doing was seriously wrong.
It quotes figures provided as evidence to the Royal Commission into the Protection and Detention of Children in the Northern Territory of a 747 per cent increase of the total number of arrests of children aged between 10-14 from 2006 to 2016, from 77 to 652.
The royal commission recommended raising the age of criminal responsibility to 12 and an unnamed spokesperson for Attorney-General Selena Uibo was quoted in the NT News in April saying the government agreed “in principle” to the recommendation and that it would take “a government decision” but “there is not yet a set date for this decision.”
On the issue of raising the age of criminal responsibility to 14, Ms Atkins speaking as the chair of the National Aboriginal and Torres Strait Islander Legal Service, told the National Indigenous Times no child belongs in prison.
“Raising the age of criminal responsibility to at least 14 is one action that Australian governments can take right now that will have an immediate — and generational — impact to end the over-incarceration of First Nations kids and to give our kids a brighter future,” she said.