Doli Incapax

The article Doli Incapax is written by Dee Giannopoulos, Director, Doogue + George Defence Lawyers.

Dee is a Director at Doogue + George and is an accredited criminal law specialist. She has a strong practice in dealing with indictable matters, pre-charge strategies, and has an extensive experience in defending people charged with child and adult sex offences.

Being brought before the criminal justice system is a daunting experience for anyone let alone if you are a child. At the heart of the Children’s Court of Victoria, there is a foundational principle that embodies the unique needs and circumstances of minors — the Doli Incapax principle.

Understanding the Doli Incapax Principle

Derived from Latin, Doli Incapax translates to “incapable of crime.” This principle serves as a recognition that children possess distinct cognitive and moral capacities compared to adults, influencing their ability to comprehend the consequences and moral implications of their actions. It underscores the idea that children should not be held to the same standards of criminal responsibility as adults due to their developmental stage and evolving understanding of societal norms.

Application of Doli Incapax in Victoria

Australia has one of the lowest ages of criminal responsibility when compared to the global average.¹

Section 344 of the Children, Youth and Families Act 2005 outlines that children under the age of 10 are unequivocally deemed incapable of committing a crime.² While this statutory provision reflects an acknowledgement that children under the age of 10 years old are naïve and should be shielded from the punitive measures of the justice system, under the current laws, police can arrest, prosecute and incarcerate children as young as 10.

However, children aged between 10 and 14 fall under the doli incapax principle. While children who fall within this age bracket are considered “not sufficiently intellectually and morally developed to appreciate the difference between right and wrong”,³ it is a presumption that is rebuttable.

This principle reflects that research on brain development shows that children under the age of 10 have not developed the necessary maturity to form criminal intent, with children under the age of 15 lacking the necessary moral and intellectual capacity to meaningfully engage in the criminal justice system. This results in a greater risk of children accepting plea deals, providing false admissions or misunderstanding court processes.⁴

While children are presumed to lack the requisite capacity to form criminal intent, this presumption can be challenged by the prosecution through evidence demonstrating a level of maturity and comprehension which shows a sufficient understanding of the nature and consequences of their actions. Courts carefully consider factors such as psychological evaluations, assessments of cognitive development, and the child’s personal circumstances when determining criminal responsibility. It is up to the prosecution to prove that the child knew that their conduct was seriously wrong at the time of the offending and therefore that the principle of doli incapax does not apply.

RP v The Queen [2016] HCA 53

RP v The Queen is the guiding case when considering doli incapax.

The case involves RP who was approximately 11 and a half years old at the time of the offending. When RP was 17 or 18 years old, he was assessed as being the borderline disabled range of intellectual functioning.

Following rulings by the trial judge that doli incapax did not apply, the matter was ultimately appealed to the High Court of Australia.

The High Court directed that verdicts of acquittals be entered on the grounds that it was not reasonably open to conclude that RP understood that his conduct was morally and seriously wrong. Their Honours summarised;

This case ultimately held that:

• To rebut the presumption that doli incapax applies, the prosecution must present evidence which clearly shows that the accused knew that their conduct was wrong at the time of the offending, rather than proving that they were merely ‘naughty’. Evidence which proves capacity when the child is older or ambiguous evidence will be insufficient to rebut the presumption.
• The presumption cannot be rebutted by the evidence inferring that the child knew that the acts were wrong. The prosecution must point to evidence which proves beyond reasonable doubt that the child’s development, education and upbringing was such that they knew that the conduct was wrong.
• The prosecution must prove beyond reasonable doubt that the child knew that the offence was seriously wrong and not just naughty, rather than prove that a child of that age must have known the conduct was wrong. The presumption acknowledges that children develop at different rates.

Rebutting the Presumption

The prosecution can rely on various forms of evidence to rebut the presumption beyond reasonable doubt. This can include:

• Statements or admissions made by the child,
• Behaviours of the child, either before and/or after the alleged conduct,
• Any prior criminal history
• Evidence from their parent or about the child’s upbringing or home life,
• Evidence from teachers, and
• Evidence from medical practitioners including psychologists and psychiatrists.

Record of Interview and Admissions

Interacting with police can be a daunting experience for adults, let alone children.

In the case of R (a child) v Whitty it was held that:

• children have the same rights to silence at a record of interview as adults,
• children under the age of 14 should be advised of the additional dangers of doing a police interview given police may ask questions with the intention of rebutting doli incapax,
• any admission, whether it is made by a child or an adult, will still be bound by evidentiary admissibility rules, and
• even if an admission is admitted, police will still be required to prove that the comments were indicative of the child’s understanding at the time of the offence.

IPH v Chief Constable of South Wales, which involved an 11-year-old boy who was charged with the criminal damage of a van,⁶ said in the police interview “yeah, I knew I would damage the truck by pushing it into the pole”. On appeal, it was held that the actions proved that he was ‘mischievous and naughty’ rather than proved that the appellant knew that the conduct was seriously wrong. This admission was ruled inadmissible.

There must be consideration not only to admissibility of admissions made by children, but also what those admissions prove. On one view, a child who has been arrested, taken to a police station, interviewed and then is required to sit in the dock of a court may come to appreciate that their conduct was seriously wrong. This is why police must prove that the child knew that their conduct was seriously wrong at the time of the offending to successfully rebut the doli incapax principle.

The Doli Incapax Principle and Historical Offending

As stated above, the principle of doli incapax applies to children aged between 10 and 14 years old. Children above the age of 14 are presumed to have the requisite intellectual and moral understanding of what conduct is considered ‘seriously wrong’. However, it is important to note that the principle of doli incapax can also extend to historic cases, even if the accused is an adult when tried.

The case of AL v R (2017) 266 A Crim R 1 involved sexual offending against the complainant who was aged 4 and 5 years old, while the appellant was aged between 12 and 13 years old. The charges were tried 14 years after the offending, when the appellant was an adult.

It was held on appeal that the trial judge had not fallen into error by failing to direct the jury on the doli incapax principle, because there was evidence to suggest that AL knew the conduct was seriously wrong at the time of the offending which successfully rebutted the presumption. It is important to note that the issue was about what AL knew at the time of the offending when he was a child, not about what he understood now being charged as an adult.

Seek Legal Advice

Ultimately, the doli incapax principle should at least be considered in criminal cases where an accused is a child aged between 10 and 14 years. While the Victorian Government has committed to raising the age of criminal responsibility to the age of 12 by the end of 2024 and then to 14 years by 2027 to bring it in line with international standards, police can still prosecute children as young as 10.

Navigating the Children’s Court process can be daunting and complicated process. It is very important that legal advice is sought when a child first interacts with police, given that police will be looking for evidence which rebuts the doli incapax principle and proves the charges beyond reasonable doubt.

_{[1] https://humanrights.gov.au/sites/default/files/2020-10/australias_minimum_age_of_criminal_responsibility_-_australias_third_upr_2021.pdf
[2] Children, Youth and Families Act 2005 (Vic), s 344.
[3] RP v The Queen [2016] HCA 53.
[4] https://humanrights.gov.au/sites/default/files/2020-10/australias_minimum_age_of_criminal_responsibility_-_australias_third_upr_2021.pdf
[5] RP v The Queen [2016] HCA 53, at [9], [12].
[6] It was alleged that the child smashed the van’s windows, scratched the paint work and pushed it into a pole.}

Date Published: 24 July 2024