A 13-year-old Victorian boy is one of eight teenagers to have been committed to stand trial for the murder of Declan Cutler, after a magistrate decided that, despite his youth, he was capable of forming a criminal intent.
The magistrate ruled that she did not have to read an 1,100-page report on whether the 13-year-old, who cannot be named, could be found not to have that mental capacity, known as the doli incapax principle.
Instead, she relied on the expert opinion of a psychologist who without interviewing the boy found that he could stand trial, in a reversal of the position reached by a different psychologist only months before the alleged murder.
It was possibly the first case ever heard in the children’s court in which the doli incapax principle had been raised in relation to an offender charged with murder, the presiding magistrate said.
In Victoria, the law presumes that a child aged between 10 and 14 lacks the capacity to be criminally responsible for his or her acts. The presumption of doli incapax is based on a view that a child is not sufficiently intellectually and morally developed to appreciate the difference between right and wrong.
The court heard that a previous doli incapax report, completed by a different psychologist in July 2021 in relation to other alleged offending committed by the boy, found he did not have this capacity.
Police had withdrawn previous charges against the boy after receiving this report, the court heard, as it did not believe it could rebut the presumption of doli incapax.
Cutler, 16, was killed in Reservoir, in Melbourne’s north, on 13 March.
During a July court appearance, in which the 13-year-old unsuccessfully applied for bail, the court heard the alleged murder occurred in the context of friction between two groups resulting in violence and threats.
Cutler was allegedly “violently killed during a frenzied attack involving multiple weapons”, a judge said at the time.
The court also heard during the bail application that the child had a troubled upbringing, including being a victim and a witness to family violence inflicted by his father.
An older brother has also been charged with the murder of Cutler, and another older brother is facing charges related to a separate murder.
The court heard that during his time on remand the boy had been diagnosed with post-traumatic stress disorder, which had contributed to “low-lethality” self-harm and other problems.
The boy and the seven other accused will appear in the supreme court on 11 October for a directions hearing.
