TWO boys, aged 12, accused of raping a six-year-old girl at their northern beaches primary school had the charges dismissed because the court ruled they were too young to understand what they did was wrong.
Magistrate Jeffrey Hogg dismissed two charges of rape against "Boy A" and one charge of rape against "Boy B" and ordered that police pay them thousands of dollars in court costs.
In dismissing the charges Mr 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.
After Mr Hogg dismissed the most serious charges, the Office for the Director of Public Prosecutions chose to withdraw the remaining four charges of Indecent assault on a person under 16 years against Boy A and three charges of Indecent assault on person under 16 years against Boy B.
Mr Hogg has also ordered the police to pay the Boy A $11,315 and Boy B $9746 for their court costs.
Both boys, who are now aged 13, pleaded not guilty to sexually assaulting the little girl in a toilet block on three separate occasions sometime between 8am on June 24 and 4pm on July 1.
Boy A also pleaded not guilty to further charges of raping the girl by himself between June 24 and July 1, and sexually assaulting her again on a second occasion on August 16.
The allegations came to light when the girl told someone at the school and her parents were notified. The Education Department also reported the allegations to the police.
Police conducted a two-week investigation before arresting the boys, then aged 12, at Chatswood police station in September last year.
On September 1, letters were mailed to other parents at the school informing them of the allegations.
The case of RP v The Queen was handed in down in the High Court in December last year.
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.
The police have until October 17 to pay the boys' legal costs.