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  • Writer's pictureGeoff Harrison

Doli Incapax

Updated: Nov 3, 2023


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Published by Geoff Harrison | 31 October 2023


The minimum age limit for criminal responsibility in NSW is 10 years of age as per s5 of the Children's (Criminal Proceedings) Act 1987. However, the common law principle of Doli Incapax is that there is a rebuttable presumption that a child between the ages of 10 and 14 does not have the capacity to commit a criminal offence due to not understanding the difference between conduct that is morally wrong and conduct that is mere mischievous or naughty. Hence, a child between 10 and 14 is presumed not to have formed the necessary mens rea or intent, and the child is said to be doli incapax.


The High Court decision of RP v The Queen traces the history of the presumption (see: Kiefel, Bell, Keane, and Gordon JJ at [10]) and the nature of the evidence required to rebut the presumption. The plurality stated in regards to rebutting the presumption as [12}:


What suffices to rebut the presumption that a child defendant is doli incapax will vary according to the nature of the allegation and the child. A child will more readily understand the seriousness of an act if it concerns values of which he or she has direct personal experience. For example, a child is likely better able to understand control of his or her own possessions and the theft of others' property compared to offences such as damaging public property, fare evading, receiving stolen goods, fraud or forgery. Answers given in the course of a police interview may serve to prove the child possessed the requisite knowledge. In other cases, evidence of the child's progress at school and of the child's home life will be required. It has been said that the closer the child defendant is to the age of 10 the stronger must be the evidence to rebut the presumption[17]. Conversely, the nearer the child is to the age of 14, the less strong need the evidence be to rebut the presumption[18]. The difficulty with these statements is that they are apt to suggest that children mature at a uniform rate. The only presumption which the law makes in the case of child defendants is that those aged under 14 are doli incapax. Rebutting that presumption directs attention to the intellectual and moral development of the particular child. Some 10-year-old children will possess the capacity to understand the serious wrongness of their acts while other children aged very nearly 14 years old will not.


The prosecution must negate doli incapax beyond a reasonable doubt.


Other Sources:

Cases:


Extracted Legislation:


CHILDREN (CRIMINAL PROCEEDINGS) ACT 1987 - SECT 5

Age of criminal responsibility


It shall be conclusively presumed that no child who is under the age of 10 years can be guilty of an offence.

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