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Warning: This story contains disturbing content.

A Melbourne boy who was 13 when he took part in the unprovoked fatal stabbing attack of 16-year-old Declan Cutler has been found not guilty of murder due to his young age.

Cutler’s family sat metres from the accused killer, breaking down and screaming as a Supreme Court judge ruled on the case on Wednesday morning.

Declan Cutler, 16, was killed after leaving a house party in March 2022.

The judge said the boy, now aged 14, may not have known his conduct was “seriously wrong” and therefore could not be fond guilty. The boy cannot be named for legal reasons.

“A review of the evidence … leaves open a reasonable possibility that [the boy] did not know his conduct was seriously wrong in a moral sense,” the judge said.

“[He] cannot be found guilty of murder.”

The court heard that on the evening of March 12, 2022, Declan Cutler attended a house party in Reservoir, in Melbourne’s north, with friends.

“The entire attack was captured on CCTV footage and lasted approximately two minutes. The footage emits not sounds, but screams of horror.”

One of the friends was affiliated with a youth gang, but Cutler – known to friends and family as DJay – was not a member.

At the same time, a group of eight teens – some of whom were part of a rival gang – left the western suburbs of Melbourne in a stolen Mazda and travelled to the streets surrounding the party.

As Cutler and his friends walked away from the party about 2.30am the following morning, the group chasing them got out of the stolen car and began stabbing, kicking and stomping on Cutler as he lay alone on the nature strip of a nearby home.

Cutler had no affiliation with any gangs and instead appeared to have been targeted as he was nearest to his attackers.

The attackers stole Cutler’s shoes before leaving him to die on the side of the road. The next day, the Mazda used in the attack was set on fire.

“The entire attack was captured on CCTV footage and lasted approximately two minutes. The footage emits not sounds, but screams of horror,” the judge said.

“Declan is repeatedly stabbed, kicked and stomped on.

“Declan was alone and unarmed when he was set upon and he was utterly defenceless. Declan was entitled to feel safe leaving the party.”

A post-mortem found Cutler suffered more than 100 injuries.

The judge said while the then 13-year-old did not stab Cutler, he repeatedly kicked and stomped on the 16-year-old as he was being stabbed by others.

The judge said the criminal age of responsibility in Victoria was 10 years old. When a child is aged under 14, the common law presumes the child lacks the capacity to be criminally responsible for their actions.

It is then the prosecution’s role to rebut this presumption and prove the child knew their actions were seriously wrong in a criminal sense.

Doli incapax is the principle that means children aged between 10 and 14 are seen as criminally incapable, and lacking moral reasoning, for some crimes, unless the prosecution can prove otherwise.

In this case, the judge said this had not been established.

“The starting point is a child under 14 is presumed in law to be incapable of being criminally responsible for their actions,” the judge said.

“I find the prosecution has not rebutted this. I therefore find [the teenager] not guilty of murder,” said.

Cutler’s family was visibly emotional as the verdict was read out after a judge-only trial.

“Is my son next?” one of the victim’s adult friends yelled.

“It’s disgusting.”

Last week, the 13-year-old’s brother – who was a year older than the boy and on bail at the time of the killing – was jailed for at least 10 years for murder.

Another teenager involved in the attack, then aged 16, was sentenced to four years in youth detention after pleading guilty to manslaughter, while another 16-year-old was sentenced to three years and six months in youth detention after pleading guilty to intentionally causing serious injury.

The four other teens allegedly involved in the attack are due to face a judge-only trial later this year.

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