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Victorian boy, 13, has mental capacity to be tried for murder of Declan Cutler, court hears

Lady Justice
Court told 13-year-old boy has mental capacity to be tried for Melbourne murder. Photograph: Dave Hunt/AAP

A psychologist has found that a 13-year-old Victorian boy charged with murder could be tried for the crime, saying that his respect for “gang members” and “adherence to an alternative moral code” shows he has the mental capacity to understand right from wrong.

The boy, who cannot be named, is one of eight teenagers charged over the murder of Declan Cutler.

Cutler was killed in Reservoir, in Melbourne’s north, on 13 March.

The teenagers accused of his murder are facing a committal hearing in a Victorian children’s court this week. The hearing will determine if there is enough evidence for the accused to face trial.

Lawyers for the 13-year-old, the youngest of those charged, spent much of Monday’s hearing questioning a psychologist who completed a report on behalf of the prosecution in relation to their client.

The psychologist did not interview the boy to compile her report, which sought to address whether he had the mental capacity to know that what he was accused of doing was wrong, known as the doli incapax principle. Those aged between 10 and 14 in Victoria at the time of their alleged offending cannot be prosecuted if a court finds that principle is upheld.

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Police had withdrawn the previous charges against the boy after receiving this report, the court heard.

But the psychologist who completed the recent report found otherwise.

She said that several factors, including his lack of appreciation of how his alleged offending harmed others, and his attempts to avoid self-incrimination and attitudes towards police, contributed to her findings.

For example, she said, when he was questioned by police about a car theft and asked how he would feel if someone had stolen his car, he responded that they could take a bus.

She added that when police once told him they had a warrant to search his property, he asked what type of warrant, a question she said a typical 13-year-old would not consider asking.

Her report said he was motivated by the allure of the “gangster lifestyle” and that he committed offences to “get rich like his gang affiliates”.

The psychologist later agreed she had taken these quotes in her report directly from intelligence materials provided by police, rather than any evidence included in criminal police briefs or in police interviews given by the boy.

She also agreed there was no evidence in the materials provided by police that the boy had caused harm to others while offending in a group, as he had been accused of doing in this case, despite her findings in part being based on his behaviour during such offending.

The hearing continues.

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