Two 13-year-old boys will be paid thousands of dollars in costs after NSW Police dropped charges against them over the alleged sexual assault of a six-year-old girl.
The boys were accused of attacking the girl in the toilet block of a primary school on Sydney’s northern beaches between June and August last year, when they were 12 years old.
Both boys had pleaded not guilty to sexually assaulting the little girl while together on three separate occasions sometime between 8am on June 24 and 4pm on July 1.
The girl told authorities one of the boys was ‘putting his privates on mine and going back and forth on them’, a Children’s Court heard in May.
When asked what she thought her privates were used for, the girl responded: ‘I thought they were used to go to the toilet.’
One boy had been charged with four counts of indecent assault and two counts of sexual intercourse with a child under 10.
The other had been charged with one count of sexual intercourse with a child under 10 and three counts of indecent assault.
But a magistrate dismissed the sexual intercourse charges in May and three months later the DPP withdrew the remaining charges.
At the Parramatta Children’s Court on Tuesday, police were ordered to pay costs of $11,315 to one boy and $9746 to the other.
Daily Telegraph reports the charges were dismissed because the court ruled they were too young to understand what they did was wrong.
In dismissing the charges Magistrate Jeffrey Hogg made reference to a recent High Court decision of RP v The Queen where a boy, aged 11, was found to be not criminally responsible for raping his younger brother because the prosecution failed to prove that he understood the “moral wrongness” of his acts.
Under common law a child aged under 14 is presumed to lack the capacity to be criminally responsible for their actions a concept referred to in law as doli incapax.
It is up to the prosecution to provide evidence proving the child did understand the moral wrongfulness of their actions rather than merely thinking their behaviour was naughty or mischievous.
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