Doli Incapax is a common law principle meaning ‘incapable of wrong’. In Australia, it applies to children aged between 10-13 years who are presumed incapable of criminal intent even if the criminal act is committed. This presumption is rebuttable, and if rebutted, can result in criminal penalties, including imprisonment.
The minimum age of criminal responsibility in Australia is 10 years. This means that a child aged under 10 years cannot be criminally responsible for committing a crime. The same minimum age of criminal responsibility applies in New South Wales under section 5 Children (Criminal Proceedings) Act, and across each State and Territory of Australia undern section 7.1 Criminal Code Act 1995 (Cth).
What is Doli Incapax?
Doli Incapax is a common law principle and is Latin for ‘incapable of wrong’. It is the rebuttable presumption that a child aged between 10 and 13 years (inclusive) is presumed incapable of criminal intent, according to the High Court case of RP v The Queen  HCA 53.
To be guilty of a crime in Australia, an offender needs to commit the offending act as well as having the necessary criminal intention, usually coinciding at the same time. If either one of those elements are not present, the accused person will be ‘not guilty’, which will result in a complete acquittal.
Normally, the prosecution is required to prove both the act and intent. Both must be proven beyond reasonable doubt in order to prove the offence against an accused person standing trial. If the prosecution fails to prove these elements, it will result in the dismissal of the charges.
If the Doli Incapax presumption is rebutted, any child aged between 10 and 13 can be found guilty and subjected to criminal penalties, including imprisonment.
How Can the Doli Incapax Presumption Be Rebutted?
The Doli Incapax rebuttable presumption can only be rebutted if the prosecution proves, beyond reasonable doubt, that the accused person knew that his or her actions were seriously wrong in a moral sense.
The test that an accused person knew his/her act was morally wrong will not be satisfied if:
- The child was aware the conduct was merely naughty or mischievous (or a focus on the child’s belief the act was more than mischievous or naughty may tend to obscure the test), or
- From evidence of the fact the accused did the act however horrifying or obviously wrong, or
- The accused acknowledging he/she understood the act was seriously wrong by itself doesn’t indicate that the child appreciates the moral wrongness, or
- Knowing the complainant did not consent or knowledge that his/her act was causing distress to the complainant.
The evidence to prove a guilty knowledge must be strong and clear beyond reasonable doubt.
If there’s no evidence to rebut the presumption by the prosecution, then what lawyers call a ‘no prima facie case’ can be submitted which may result in the charge(s) being dismissed.
The type of evidence that can help prove the necessary knowledge of serious moral wrongness include evidence of intellectual and moral development of the particular child through expert evidence; evidence of a capacity to understand an event, the ability to judge whether their actions were right or wrong and an ability to act on that moral knowledge; or evidence of the child’s performance at school, education and environment the child has been raised.
What is the meaning of a child? A child means a person who is of or over the age of 10 years and under the age of 18 years, according to section 4 of the Young Offenders Act 1997 (NSW).
Age of Criminal Responsibility at the International Stage
The Age of Criminal Responsibility also upholds the requirement in the UN Convention on the Rights of the Child (1989), Article 40(3)(a) that encourages the establishment of a ‘minimum age below which children shall be presumed not to have the capacity to infringe the penal law’.
Calls to Increase the Age of Criminal Responsibility in Australia
The NSW Bar association is renewing calls for the New South Wales Government to raise the age of criminal responsibility from 10 to 14.
This has sparked after Four Corners exposed the brutal conditions that children face in youth detention, particularly in the Banksia Hill Detention Centre.
One of the conditions includes unlawful solitary confinement, which has facilitated devastating self-harm and attempted suicide by young children.
“Sending ten-year-old children into the criminal justice system is exposing them to trauma. It is not stopping them from committing crimes nor is it making our community safer in the long-term,” President Gabrielle Bashir of the NSW Bar Association said.
She urged government action, criticising the faults of youth detention and the criminalisation of children.
“State governments and politicians have now dragged their feet for far too long, despite this report, ignoring reams of expert medical and legal advice that confirms criminalising children aged 10, 11, 12 and 13 does not work,” says the President
She also mentioned that youth detention leads to devastating impacts on the future of a child’s life
“Jailed children – often the most marginalised in our community – are set on a path of lifetime damage,” she said.
The true data reveals that children under 14, and particularly First Nations children, are being subject to the criminal justice system, including being bail refused in detention awaiting hearings, despite in 2019, around 99% of matters before the courts ultimately resulted in a non-custodial outcome.
Further Youth detention is extremely expensive and the daily cost of detaining one child in NSW has risen to nearly $2,000 per day whereas other proven intensive rehabilitation programs can be run for a fraction of that cost.
The average cost of detaining a young person in a Youth Justice centre is approximately $170 000 per year; proven intensive rehabilitation programs can be run for a fraction of that cost.
As highlighted by medical experts such as Dr Weatherburn, many youth justice detentions fail to address the underlying causes of juvenile offending such as socioeconomic status, drug and alcohol use, parental neglect and abuse, unemployment, and other issues.
This leads to an increase in the likelihood of children to reoffend and commit crimes as adults which places a larger burden on both the prison system and the Australian economy.
By Jimmy Singh and Alyssa Maschmedt.