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BUNGLING bureaucrats are delaying justice for survivors of the Bourke St rampage by refusing to hand over the alleged killer's medical records.

Dimitrious Gargasoulas, 27, is charged with six counts of murder and 28 of attempted murder over the January 20 incident in the city.
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His matter returned to the Supreme Court today where a frustrated Justice Lex Lasry heard the matter may soon grind to a legal halt.

The potential delay sits on the lap of the Department of Justice, who has still failed to cough up the alleged killer's medical records to Gargasoulas' defence.

Doctors assessing Gargasoulas refuse to tick off on their mental assessments of the alleged killer until they see all of his records.

His barrister, Dr Theo Alexander, said the department's FOI officer had advised that due to their workload they could only "process" 150 pages per request.

The court was told there are about 1100 pages of records required.

The department, which has had the request since October 6, advised on November 9 that those first 150 pages were still two weeks away.

"They still haven't provided the material," Dr Alexander said.

"It's not apparent to me why not, this is not an FOI request ... can you not just download onto a USB and provide it?"

Justice Lasry described the situation as "absurd".

"What I've been concerned of what was (going to happen), is happening," he said.

Justice Lasry was equally annoyed at the size of the police brief, which comes in at a whopping 6500 pages.

The brief of evidence was served on Gargasoulas' defence on October 20 and includes statements from 900 witnesses.

The Director of Public Prosecutions John Champion, SC said the criminal brief doubled as the brief for the Coronial inquest.

"It's ridiculous," Justice Lasry said. "There won't be 900 witnesses, I can tell you that."

It's alleged Gargasoulas mowed down dozens of pedestrians in the busy retail strip, killing a baby boy, a schoolgirl and four other people as shoppers ran for cover.

Dr Alexander said the witnesses would add little to what was already known about the case.

He said if he did not receive his client's medical records before next month's court date in the Magistrates' Court, he would ask for an adjournment.

Justice Lasry said he would too adjourn the matter for a week to allow the department to co-operate.

"Let them know the Supreme Court is interested," he said.
wayne.flower@news.com.au

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BUNGLING bureaucrats are delaying justice for survivors of the Bourke St rampage by refusing to hand over the alleged killer's medical records. Dimitrious Gargasoulas, 27, is charged with six counts of murder and 28 of attempted murder over the January 20 incident in the city.

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Updated November 26, 2017 10:51:43

Doctors and Aboriginal legal groups are leading a push to convince all state and territory governments to raise the age of criminal responsibility from 10 to 14 years old.

On average about 600 children under the age of 14 serve sentences in youth detention each year - 70 per cent are Indigenous children.

The Royal Commission into the Protection and Detention of Children recommended raising criminal responsibility to 12 and said children under 14 should only be jailed for serious and violent crimes.

Dr Mick Creati, a senior fellow at the Royal Australasian College of Physicians, said it was a change that should be implemented Australia-wide.

"We fully support the call from the commission to raise the age of criminal responsibility," Dr Creati said.

"Regardless of the other horrible things we saw in Don Dale, removing children from family, school and positive peer connection is damaging."

Dr Creati, a paediatrician who specialises in adolescent health, said children under the age of 14 had minimal impulse control.

"We're seeing children incarcerated for what we think are developmentally normal actions," he said.

"Now, we know that these actions are sometimes violent, but we don't believe that the response to these actions is to commit these children to the youth justice system, these children need support.

"If they're removed from positive influences and their development is shaped by the youth justice system, that is very damaging to their adult identity."

The UN Committee on the Rights of the Child strongly recommends the age of criminal responsibility be raised.

"We know in countries where it has been increased, the rate of recidivism has decreased," Dr Creati said.

National Aboriginal and Torres Strait Islander Legal Services co-chairman Wayne Muir said lessons from the royal commission were "applicable to the entire nation".

"You take a kid who is effectively a Grade Four kid and you're putting them in a cell behind barbed wire, the cell is about the size of a carpark space," Mr Muir said.

"We've got to ask ourselves as a society, is that really the way we want to treat 10-year-olds? Surely there's a better way."

At the time of the commission's release, Indigenous Affairs Minister Nigel Scullion said young people in the youth justice system should not "be dismissed as broken".

Topics: youth, community-and-society, law-crime-and-justice, royal-commissions, nt, australia

First posted November 26, 2017 08:36:09

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Doctors, lawyers push to raise age of criminal responsibility

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Updated November 26, 2017 10:51:43 Doctors and Aboriginal legal groups are leading a push to convince all state and territory governments to raise the age of criminal responsibility from 10 to 14 years old. On average about 600 children under the age of 14 serve sentences in youth detention each year - 70 per cent are Indigenous children.

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Posted July 23, 2015 22:42:27

Fast food chain McDonald's has been forced to apologise for a talking toy given with some meals which customers say is inappropriate.

Parents in the United States complained to the restaurant about the toy, based on the new film Minions, which they claim said: "What the f***?"

McDonald's said the toy was speaking gibberish but apologised for causing any confusion or offence.

One researcher from the University of Technology, Sydney (UTS) has said the incident highlighted unnecessary sensitivity to swearing in public.

In some Australian states, people can be spot-fined up to $500, and even spend time in prison, for swearing in public.

Quentin Bryce Law Doctoral Scholar at UTS, Elyse Methven, has pointed to research showing children are exposed to swearing at the age of one or two.

She said the evidence swear words were harmful was negligible.

"Psycholinguist Timothy Jay has done extensive studies on children and swearing, and he has tried to dispel many myths about swearing," she told Linda Mottram on 702 ABC Sydney.

"The research found that children around one or two know several swear words, and children of school age have a vocabulary of up to 42 taboo words.

"These laws are predicated on the idea that swear words cause some kind of harm.

"So, the question is what harm, and that's not really clearly articulated in the case law."

There have been studies showing that when people swear, they can get some sort of pain-relief effect from the swearing.

Elyse Methven, UTS researcher

Ms Methven also said the application of anti-swearing laws was inconsistent.

"People don't really know if they can say f*** or c*** in a bar, in a shopping centre, in a football match, sitting next to a police officer, or not," she said.

"The question is whether or not the law should be setting these standards. Perhaps it should be left to parents to talk about morals.

"We should think a little bit deeper about what we are protecting children from if they've already heard the words at a very young age."

Swearing can relieve pain and ease frustration

Ms Methven disagreed with the common belief that words like f*** and c*** have a sexual meaning and are therefore are inappropriate for children.

"Linguists argue that the correlation between the form and content of swear words are arbitrary," she said.

"These words tend to develop an emotive meaning - their strength lies in their connotation rather than their definition.

"The idea that people are picturing two people having sex when they hear the word f*** is probably quite misleading."

Ms Methven said anti-swearing laws had proven ineffective over thousands of years.

"There have been prohibitions on swearing since ancient Roman times," she said.

"At the same time, people have been swearing since ancient Roman times."

She said swear words had also been proven to relieve pain and ease frustration.

"There have been studies showing that when people swear, they can get some sort of pain-relief effect from the swearing," Ms Methven said.

"A blanket ban is not a great idea in my opinion, based on my research.

"But, just like any slurs or insults, they can have damaging effects in certain contexts."

Topics: law-crime-and-justice, human-interest, education, children, university-of-technology-sydney-2007, sydney-2000

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Anti-swearing laws redundant and ineffective: legal researcher

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Posted July 23, 2015 22:42:27 Fast food chain McDonald's has been forced to apologise for a talking toy given with some meals which customers say is inappropriate. Parents in the United States complained to the restaurant about the toy, based on the new film Minions, which they claim said: "What the f***?"

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"These kids have lost their culture, it's been destroyed," Nyoongar elder Ben Taylor told NITV News. "Our culture has been destroyed by colonisation and the stolen generation."

Mr Taylor is referring to an 11-year-old who has been charged with the murder of a 26-year-old man. The child is the youngest known person in Australia's recorded history to have been charged with murder.

The child was charged along with three other people after a clash between groups at 3.30am on January 27 in Perth, Western Australia.

Mr Taylor says children are turning to alcohol and drugs in response to losing their culture.

"There are scars, they're scars of the White Australia policy, of being torn from your mother's arms," the 76-year-old says.

Call to raise the age of criminal responsibility

Ten is the age that criminal age of responsibility begins in all jurisdictions in Australia.

But the UN Committee on the Rights of the Child says the age should be 12.

In a UN report in 2007 it advised that, "a minimum age of criminal responsibility below the age of 12 years is considered by the committee not to be internationally acceptable".

Australia's criminal responsibility legislation holds a grey area. While the criminal responsibility age starts at 10, the law contains a rebuttable presumption known as doli incapax that rules a child between age 10 and 14 is incapable of committing a criminal act.

Amnesty International Australia told NITV News the age of criminal responsibility should rise from age 10 to 12, in line with brain development research.

"Australia is out of line with international standards in holding children as young as 10 criminally responsible for their actions," it says.

Amnesty says this particular case is "terribly sad", and "devastating for the victim's loved ones".

But even "in a case as difficult as this", it believes international standards must be upheld.

"The case of the 11-year-old boy in Western Australia is no exception. As a child under the age of 12 he should not be held criminally responsible, but Australia's out-of-step laws dictate that he will be."

This is not the first time Amnesty has called for the age to be raised around criminal responsibility. In August 2015, the organisation along with other rights and legal bodies, wrote an open letter to the Attorneys-general in Australia calling for the age to reflect the international standards.

Western Australia Attorney-General Michael Mischin told NITV News the state government does not intend to raise the age of criminal responsibility.

"However, a child under the age of 14 years is not criminally responsible unless it can be proved beyond reasonable doubt that at the time of the alleged offence the accused child had the capacity to know that he or she ought not do the act or make the omission giving rise to the offence," Mr Mischin said.

"In short, the law already takes into account the accused child's level of maturity and intellectual development."

How a child's brain develops

The brain's prefrontal cortex, which governs skills such as impulse control and decision-making doesn't develop properly until adolescence, say Waienberger, Giedd and Elevag in their publication The Adolescent Brain: A work in progress.

Criminology and child offence researchers Gregor Urbas and Raymond Arthur put forward the case that children under the age of 14 do not fully understand the severity of their actions or have full control of their behaviour.

But child health expert Fiona Stanley AC told NITV News that while the ability to know right from wrong is still developing and varies in children, "it's very very rare they will kill another."

She says a child's brain development "hugely depends" on the environment a child is exposed to in utero or in life.

"So if a child is born into a warm and loving environment, breast fed, all that lovely contact and sense of being nurtured and loved, then all of the right brain hormones and the brain chemicals, as well as those neurons, will migrate to the right place and function effectively," she says.

Conversely, if children are exposed to a high degree of stress such as witnessing partner violence, being subjected to physical or sexual abuse, or substance abuse in utero and after birth, that "can actually switch off the genes that are meant to be important for brain development."

She provided the hypothetical example of the implications of covering a child's eye for six months from birth.

"That child would never see from that eye because the brain would not have developed in that visual cortex where the seeing centre is.

"The only interpretation that I could give for [the 11-year-old] is that there has been serious interference with brain development during their life."

Ms Stanley says Australia must invest in more effective ways to protect children, such as early childhood care.

"Surely you can't just incarcerate them without looking after them," she says. "There has got to be some other way in which we take these children into care and look after them and love them and nurture them and provide care for them.

"And then at least they can develop to the extent of the abilities that they have, and I think that's the most humane thing you could do as a society."

Indigenous young people and the law

Amnesty says Australia's "breaching" of international standards around criminal responsibility is "taking its toll on Indigenous children".

Indigenous children make up less than 6 per cent of the population of 10-17 year-olds, but comprise 58 per cent of young Australians in detention, according to data from the rights organisation.

Western Australia Aboriginal Legal Services CEO Dennis Eggington says states and territories or the Commonwealth should consider their "repugnancy" in their adoption of international standards around the rights of children.

Australian law has adopted Article 3 of the UN Convention on the Rights of child that mandates "the best interests of the child shall be a primary consideration".

"One of the only international conventions that we have adopted into domestic law is the rights of the child in family law," he says.

But he questions why Australia has adopted this principle and not another.

"Australia has to adopt international agenda principles to develop a proper relationship with its Indigenous peoples," he says.

Further, Mr Eggington suggests considering the age of criminal culpability is in the best interests of the child.

"It's fair to say that our community suffer much more levels of trauma and life changing events, our community suffer much more levels and incidences of critical events, and are growing up with much more trauma in the lives."

John McBain, Indigenous justice organisation ANTaR Western Australia's chairperson and Campaigns and Advocacy Committee member, says unrest in Australia's Indigenous communities will continue until wider society begins respecting them and addresses its hypocrisy.

"I'm not justifying car theft or being on the street at 1.00am in the morning stabbing people," he says.

"[But] how can we explain to young Aboriginal kids that you can't steal a car or something when our society says it's OK to steal a whole country."

Mr McBain says a child should be held responsible for their actions, but asks, "should a child be judged as a criminal when they're not even an adult? Well that's really sad."

"Should we be focused on getting them back on the right track?

"Yes."

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The age of criminal responsibility must rise, say experts after 11-year-old's murder charge

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"These kids have lost their culture, it's been destroyed," Nyoongar elder Ben Taylor told NITV News. "Our culture has been destroyed by colonisation and the stolen generation." Mr Taylor is referring to an 11-year-old who has been charged with the murder of a 26-year-old man.

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A woman who fatally stabbed her neighbour 19 times has been found not guilty of murder due to mental impairment.

Eva Whitecross, 55, killed 44-year-old fitness trainer Rachel Tyquin with a kitchen knife during an early morning walk in Sunbury, north west of Melbourne, in 2016 but pleaded not guilty to murder, claiming mental impairment.

"Mrs Whitecross, acting on her psychotic delusions, attacked and killed Ms Tyquin," Victorian Supreme Court Justice Jane Dixon said in her judgment on Friday.

Police alleged Mrs Whitecross murdered Ms Tyquin with a knife after they crossed paths about 5.55am on April 16, after both women had been out on separate walks.

Ms Tyquin was found on the footpath several doors from her home about 7.15am. She had suffered 16 stab wounds to the chest and neck.

About 20 minutes after the attack, police say Ms Whitecross sent her husband a text message which read: "You better come home right now."

She later handed herself into police.

Ms Whitecross entered a plea of not guilty in September. At the time, defence counsel Paul Galbally told the court his client would contest the charge by way of mental impairment.

Ms Tyquin was a fitness instructor who from 2007 ran a personal trainer business from her home, and that clients would park their cars in the street, which agitated her neighbour, according to documents released by the court last year.

Police said Mrs Whitecross had once asked Ms Tyquin if her clients could park outside the personal trainer's home, but that she laughed at her and walked away.

From that point, a prosecution summary alleges, Ms Whitecross became more aggressive and began trying to intimidate Ms Tyquin by staring at her, regularly called her a "f--king slut" and a "whore" and mowed the grass next to clients' cars, which flicked clippings and stones onto them.

By 2010 Ms Tyquin began fearing for her safety, police say, and in 2012 she took out an intervention order.

Police allege Ms Whitecross resumed abusing her neighbour once the intervention order expired.

Ms Whitecross told police in an interview that on the morning of April 16 Ms Tyquin approached and struck her to the face.

"She stepped towards me and then I felt her hand on my face. I didn't think it was a fist, it was a hand and I reacted very badly," she said.

She told investigators she fell on top of Ms Tyquin and put her hand in her bag, where she found the knife.

She said she carried the knife in case other dogs attacked her own dogs.
AAP, with Adam Cooper

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Sunbury woman not guilty of neighbour's murder due to mental impairment

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A woman who fatally stabbed her neighbour 19 times has been found not guilty of murder due to mental impairment. Eva Whitecross, 55, killed 44-year-old fitness trainer Rachel Tyquin with a kitchen knife during an early morning walk in Sunbury, north west of Melbourne, in 2016 but pleaded not guilty to murder, claiming mental impairment.

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The man accused of mowing down pedestrians in Melbourne's CBD now faces a murder charge following the death of an 83-year-old man.

Three people remain in hospital following the incident.

Saeed Noori, 32, has also been charged with 18 counts of attempted murder and one count of conduct endangering life after he allegedly ploughed through pedestrians on the corner of Flinders and Elizabeth streets on December 21 last year.

Police upgraded one of his charges to murder on Tuesday after the Northcote man died on December 29.

He has been remanded in custody to appear again at Melbourne Magistrate's Court on 30 May.

He earlier appeared in court behind security glass on December 21.

During that appearance, Noori's lawyer indicated his mental impairment and fitness to plead would be explored as part of his defence case.

Twenty people, including Noori and an off-duty police officer who arrested him, were hospitalised after the alleged rampage.

It was the second fatal car attack on pedestrians in the Melbourne CBD last year.

On January 20, six people died and dozens were injured when Dimitrious Gargasoulas allegedly ran down pedestrians on Bourke Street.

Victoria Police have urged anyone that witnessed the incident and who feels they may require assistance in coping, to contact the Victims of Crime Helpline on 1800 819 817.

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Flinders Street accused charged with murder after man's death

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The man accused of mowing down pedestrians in Melbourne's CBD now faces a murder charge following the death of an 83-year-old man. Three people remain in hospital following the incident. Saeed Noori, 32, has also been charged with 18 counts of attempted murder and one count of conduct endangering life after he allegedly ploughed through pedestrians on the corner of Flinders and Elizabeth streets on December 21 last year.