Doli Incapax and the Age of Criminal Responsibility in Australia

Just after 4pm on Thursday, 25 May 2023, emergency services responded to reports of a fire at a multi-storey building in Surry Hills, near Sydney’s central business district.

More than 100 firefighters attended the scene but were unable to extinguish the blaze, which destroyed the entire building.

Dozens of occupants were evacuated and a multi-agency law enforcement team was assembled to investigate the cause of the inferno.

Those investigations led to the  arrest yesterday of two 13-year old boys, who were subsequently charged with  intentionally or recklessly destroy or damage property in company by use of fire, which is an offence under section 195(1A) of the Crimes Act 1900 (NSW) that carries a maximum penalty of 11 years in prison.

They were further charged with unlawful entry on inclosed lands, which is an offence under section 4 of the Inclosed Lands Protection Act 1901 (NSW) carrying a maximum penalty of 5 penalty units (currently $550), or 10 penalty units ($1,100) where it relates to a ‘prescribes premises’ such as a school, child care service, hospital or nursing home.

One of the boys was also charged with shoplifting at a nearby grocery store on the same day.

The boys’ cases are listed in Surry Hills Children’s Court which, unless there are pleas of guilty, will ultimately need to decide whether they can be held criminally responsibility given their young age.

Doli incapax and the age of criminal responsibility in Australia

Doli incapax is a Latin term denoting the notion that certain people are deemed incapable of forming the intent to commit criminal offences or torts.

It is a common law legal principle that has been adopted by state and territory legislation across Australia, which makes clear that children under the age of 10 years cannot be held responsible for criminal offences.

It has also be codified in federal legislation which states that youths aged at least 10 but less than 14 years can only be held criminally responsible if the prosecution is able to discharge its onus of proving beyond a reasonable doubt that the presumption of doli incapax does not apply.

Doli incapax in NSW and Commonwealth legislation

The age of criminal responsibility in New South Wales is enshrined in section 5 of the Children (Criminal Proceedings) Act 1987 which provides that, ‘It shall be conclusively presumed that no child who is under the age of 10 years can be guilty of an offence’.

New South Wales legislation does not contain the common law presumption relating to children aged at least 10 but less than 14 years of age.

The 10-year age of criminal responsibility is also contained section 7.1 of the Criminal Code Act 1995 (Cth) which applies across Australia and states that, ‘A child under 10 years old is not criminally responsible for an offence’ under that Act.

Section 7.2 of the Criminal Code Act contains the common law presumption in relation to children aged at least 10 but less than 14 years of age, stipulating that:

(1) A child aged 10 years or more but under 14 years old can only be criminally responsible for an offence if the child knows that his or her conduct is wrong.

(2) The question whether a child knows that his or her conduct is wrong is one of fact. The burden of proving this is on the prosecution.

Leading case

The leading authority on the common law doli incapax presumption relating children aged at least 10 but less than 14 years is the High Court case of RP v The Queen [2016] HCA 53.

The case involved accusations of sexual offences committed by a boy against his younger brother.

The four alleged sexual offences were said to be committed by the boy when he was aged between 11 years and six months and 12 years and three months.

The initial proceedings were tried by a judge-alone in the District Court of New South Wales, who acquitted the boy of one charge but convicted him of the remaining three.

The issue before the panel of five High Court justices was whether the prosecution had rebutted the common law presumption of doli incapax in relation to the accused boy.

The leading judgement of four of the justices in that case clarified that:

• The common law presumption of doli incapax applies to children aged at least 10 and less than 14 years,
• The presumption is based on the notion that ‘a child aged under 14 years is not sufficiently intellectually and morally developed to appreciate the difference between right and wrong and thus lacks the capacity for mens rea’ (at para 8). ‘Mens rea’ means ‘guilty mind’ and denotes the mental element required to establish an offence,
• Doli incapax presumes a child under the age of 14 does not know his or her actions are ‘seriously wrong’,
• It follows that the cannot be held criminally responsible for his or her actions,
• It is a rebuttable presumption,
• The prosecution bears the legal onus of rebutting the presumption,
• The standard of proof required for the prosecution to rebut the presumption is beyond reasonable doubt,
• ‘[T]he presumption may be rebutted by evidence that the child knew that it was morally wrong to engage in the conduct that constitutes the physical element or elements of the offence’ (at para 9),
• ‘Knowledge of the moral wrongness of an act or omission is to be distinguished from the child’s awareness that his or her conduct is merely naughty or mischievous’ (at para 9), 
• ‘This distinction… [between moral wrongness and naughty or mischievous] may be captured by stating the requirement in terms of proof that the child knew the conduct was “seriously wrong” or “gravely wrong”’ (at para 9), and
• ‘No matter how obviously wrong the act or acts constituting the offence may be, the presumption cannot be rebutted merely as an inference from the doing of that act or those acts’ (at para 9).

Applying those principles to the facts of the case before it, the highest court in the land upheld the boy’s appeal, set aside the convictions against him and entered verdicts of acquittal in their place.

RP v The Queen provides important guidance on the core principles of the presumption of doli incapax, as well as the high bar that is set for its rebuttal.

Going to court?

If your child has been accused of a criminal offence, call Sydney Criminal Lawyers 24/7 for expert advice and formidable legal representation from a team of exceptional criminal defence lawyers who are vastly experienced in proceedings before the Children’s Court.

Your first appointment is free and without obligation, and we offer fixed fees for many cases and services.