Doli Incapax and the Age of Criminal Responsibility

In most Australian jurisdictions the minimum age of criminal responsibility is 10 years. This means that a child under the age of 10 cannot be held criminally responsible for committing an offence. The exception is the Northern Territory which only raised the age of criminal liability to 12 in August.

In NSW, the relevant legislation is section 5 of the Children (Criminal Proceedings) Act 1987 which states as follows, “It shall be conclusively presumed that no child who is under the age of 10 years can be guilty of an offence.” This is a statutory presumption that cannot be rebutted.

The common law presumes that a child aged between 10 and 14 years does not possess the necessary knowledge to have mens rea, or criminal intention. In other words, a child is incapable of committing a crime because they do not understand the difference between right and wrong. This is known as the common law presumption of ‘Doli Incapax’. This is a rebuttable presumption and is discussed in detail below.

It should be noted, however, that not all jurisdictions have included the doctrine of doli incapax in legislation. This means the application of doli incapax is not the same across all Australian states and territories.

What is Doli Incapax?

Doli incapax is a Latin phrase meaning “incapable of evil”. The presumption of doli incapax is a presumption that can be rebutted by the prosecution calling evidence.

In addition to proving the elements of the offence, the onus is on the prosecution to prove beyond reasonable doubt that the child knew that what they did was seriously wrong, in a moral sense, as distinct from mere mischief.

The existence of the presumption of doli incapax was most recently affirmed in the 2016 High Court case of RP v The Queen, in which the court (per Kiefel, Bell, Keane and Gordon JJ at [9], [12]) stated:

“[To rebut the presumption of doli incapax,] the prosecution must point to evidence from which an inference can be drawn beyond reasonable doubt that the child’s development is such that he or she knew that it was seriously wrong in a moral sense to engage in the conduct. This directs attention to the child’s education and the environment in which the child has been raised.

…What suffices to rebut the presumption will vary according to the nature of the allegation and the child.”

The test developed in RP v The Queen set down the following principles:

  • the prosecution must rebut the presumption of doli incapax as an element of the prosecution case,
  • proof requires that the child appreciated the moral wrongness of the alleged offence, as opposed to being aware that the conduct was merely naughty,
  • the evidence to prove guilt must be clear and beyond all doubt and contradiction, and
  • the evidence is not mere proof that the child did the act charged, however horrifying or obviously wrong the act may be.

Push to raise age of criminal responsibility in NSW

There are renewed calls to raise the age of criminal responsibility in NSW to 14. A coalition of child advocate groups are urging the NSW government to raise the age of criminal responsibility to at least 14, arguing that engagement with the criminal justice system causes children to suffer harm and entrenches social disadvantage. Other concerns include children being subjected to strip searches, remanded in custody, or denied bail.

According to the NSW Bureau of Crime Statistics and Research (Bocsar), in 2022, almost 3,000 children aged under 14 had interactions with police, meaning they were interviewed or charged in relation to criminal offences.

Over the same 12-month period in 2022, 1,115 children had matters before the court, 1,647 were cautioned and 188 children were referred to a youth justice conference.

The UN Committee on the Rights of the Child recommends that all countries increase the minimum age of criminal responsibility to at least 14 years of age.

Other states and territories will soon join the Northern Territory. Victoria has committed to raising the age to 12 by the end of 2024 and to 14 by 2027, whilst the ACT has enacted legislation that will shortly increase the age to 12 and to 14 by July 2025.

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