11 This reasoning has been influential in the criminal law. Glanville Williams drew on the tort authorities to declare: "Children are not subject to the standard of adults; they need show only the standard to be expected of a child of the particular age."[10] In Tasmania, Burbury CJ drew on the judgment of Kitto J to decide that homicide by culpable negligence under s 156(2)(b) of the Criminal Code only captured conduct less than the standard of care expected of a youth of the accused's age (there 14 and 17 years). His Honour said "the relevance and the weight of the age factor is essentially a jury matter and I propose to leave it to them."[11] And, of course, in Stingel v R [12] the Full Court of the High Court of Australia drew on the judgment of Kitto J to decide the objective test of provocation under s 160 of the same Code required age to be taken into account.
12 No case I am aware of has decided the age of an accused who is a child should not be taken into account when applying the dangerousness test. In my view, it would not be inconsistent with the function of the test in the law of manslaughter to do so.
13 It has often been pointed out the common law of homicide has evolved from automatic culpability for those who cause death, whether intentionally or accidentally, to culpability only for those whose actions or state of mind fulfil additional criteria.[13] One important principle now applied to that continuing process is that, so far as possible, the criminal law should be developed "towards a closer correlation between moral culpability and legal responsibility".[14] Subjecting children to an adult standard, when we know children have a lesser capacity for realisation of appreciable risk than adults, would widen the gap between moral culpability and legal responsibility to its maximum. Taking the age of a child into account when applying the dangerousness test brings the two more closely together and is more consistent with the evolution of the law of homicide.
14 As I said earlier, it is the dreadful consequence of an act causing the death of a human being that is seen to call for the application of an objective test. The community expects criminal responsibility to be attributed even where the accused, subjectively, did not realise his or her actions were dangerously risky. One reason for not taking the age of a child-accused into account, which was urged on me by the prosecution, is that doing so would undermine - explode, the prosecution would say - the objectivity of the test. The argument is that today it is age, tomorrow it will be gender and the day after that it will be upbringing. Eventually, it is said, these allegedly subjective factors will pile up and bury the objective test.
15 I cannot accept this submission. A child is a person under the age of 18 years. All persons under that age are children. The status of an accused person as a child is an objectively ascertainable attribute. It is not like a state of mind or an emotion. It is not like an intention. As we saw Windeyer J say, it is not an "idiosyncrasy". And, as we saw Kitto J say, it appeals to "an objective and not a subjective standard." Taking the age of a child-defendant into account has not damaged the objective reasonable person test in the law of negligence. Taking the age of a child-accused into account will not damage the objective reasonable person test in the law of manslaughter.
16 The prosecution relies on the observation of the High Court in Stingel that the test of criminal negligence giving rise to involuntary manslaughter was "entirely objective, taking no account of the age of the accused".[15] Involuntary and voluntary manslaughter are closely connected[16] so, it is submitted, it would be wrong to ignore age for one and look at it for the other.
17 There is force in this submission. I have examined the observation carefully to see whether the logic behind it requires me to come to a different conclusion. The observation, which was brief, was made in the context of a detailed discussion of the law of provocation. In the later case of Wilson v R,[17] the Court said that, in manslaughter by unlawful and dangerous act and manslaughter by criminal negligence, "the tests of dangerousness are different." Whatever the implications of the observation as regards the test for manslaughter by criminal negligence,[18] I think it does not dictate the approach to be adopted as regards the test for manslaughter by unlawful and dangerous act.
18 For these reasons, the fact that the accused was a young teenage boy when he killed the deceased has to be taken into account in the application of the dangerousness test. The prosecution must prove beyond reasonable doubt the accused, when he killed the deceased, acted in a way that a reasonable person who was a young teenage boy would realise exposed the deceased to an appreciable risk of serious injury. I will so instruct the jury.