Doli incapax is a legal doctrine that refers to the presumption that a young person is incapable of forming the mens rea, or guilty mind, necessary to commit a crime. In other words, it assumes that a child under a certain age does not have the capacity to understand the nature and consequences of their actions.
Doli incapax is a Latin term that translates to “incapable of evil,” and it is a legal concept that has been recognised in various jurisdictions around the world, including Australia. Accordingly, it assumes that a child could not form the criminal intent to commit a crime. However, this is a presumption, and the crown will need to rebut the presumption.
In Australia, doli incapax was introduced in the 19th century as a common law principle, and it has since been incorporated into various pieces of legislation. The age at which the presumption of doli incapax applies varies between jurisdictions, but it is generally set at around 10 years old.
The application of doli incapax in Australia is primarily aimed at protecting children from the harsh consequences of criminal prosecution. When a child is charged with a criminal offence, the prosecution must prove that the child had the necessary intention to commit the offence. However, suppose the child is deemed to be doli incapax. In that case, the prosecution must prove that the child had the capacity to understand the nature and consequences of their actions at the time the offence was committed. This principle of law applies in all Australian jurisdictions.
In New South Wales, the application of doli incapax is governed by the Children (Criminal Proceedings) Act 1987. Under this legislation, children under the age of 10 are presumed to be doli incapax, while children between the ages of 10 and 14 are presumed to be doli incapax unless the prosecution can prove otherwise.
If the presumption of doli incapax applies, the child cannot be found guilty of the offence unless the prosecution can prove beyond a reasonable doubt that the child had the necessary intention to commit the offence.
The New South Wales Bar has asked the New South Wales Government to increase the criminal responsibility age from 10 to 14 in light of the recent Four Corners report uncovering the inhumane conditions children were subjected to in the Banksia Hill Detention Centre. This included morally wrong things such as solitary confinement, leading to multiple instances of self-harm and suicide attempts.
Investigations show that young people, particularly Indigenous kids, are subject to the criminal justice system, with many cases not resulting in custodial sentences in 2019. In addition, keeping a child in detention in NSW is very costly, reaching almost $2,000 a day, while other intensive rehabilitation programs are much cheaper. On average, it costs around $170,000 a year to keep a young person in a Youth Justice centre, while these rehabilitation programs can be done for a fraction of the price.
The International Age of Criminal Responsibility for Children is the minimum age at which a child can be held legally responsible for committing a crime. This age varies across different countries and jurisdictions, but there is a growing consensus in international law that the age of criminal responsibility should be set at a level that is consistent with the age of moral and cognitive development of the child.
The United Nations Convention on the Rights of the Child (UNCRC), which is the most widely ratified human rights treaty in the world, sets a general standard for the minimum age of criminal responsibility.
Article 40 of the UNCRC states that “every child alleged as, accused of, or recognised as having infringed the penal law should be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.
The UNCRC further recommends that the minimum age of criminal responsibility should be no lower than 12 years old and that countries should consider raising this age to at least 14 years old. However, these recommendations are not legally binding, and many countries still set their minimum age of criminal responsibility at a much lower level.
Some countries have set the minimum age of criminal responsibility as low as 7 years old, while others have set it at 14 or 16 years old. In some jurisdictions, there are separate age thresholds for different types of offences, such as violent crimes or drug offences.
The international community has raised concerns about the low age of criminal responsibility in some countries and the potential for children to be subjected to harsh and disproportionate penalties for their actions. Some argue that children who engage in criminal behaviour should be treated as victims rather than perpetrators and that they should be provided with rehabilitation and support to address the underlying causes of their behaviour.
In recent years, there has been a trend towards raising the minimum age of criminal responsibility in many countries in line with international human rights standards. However, there is still a long way to go to ensure that children’s rights are fully protected in the criminal justice system, and that they are not subjected to arbitrary or discriminatory treatment based on their age.
There have been recent cases in Australia where the principle of doli incapax has been applied.
For example, in a case in the New South Wales Children’s Court in 2021, a 12-year-old boy was charged with breaking, entering, and stealing from a school. The boy was presumed to be doli incapax, and the prosecution was required to prove that he had the necessary intention to commit the offence. However, the court ultimately found that the boy did not have the capacity to understand the nature and consequences of his actions, and he was acquitted of the charges.
Another recent case in Western Australia involved a 13-year-old boy who was charged with causing grievous bodily harm to another child. The boy was also presumed to be doli incapax, and the prosecution was required to prove that he had the necessary intention to commit the offence. In this case, the court found that the boy understood the nature and consequences of his actions and was found guilty of the charges.
These cases demonstrate the importance of the principle of doli incapax in protecting children from the harsh consequences of criminal prosecution. The application of this principle ensures that children are not held responsible for their actions in the same way as adults and that their age and developmental level are taken into account when determining their culpability for criminal offences.
If you have a child who has been charged by police at a young age where doli incapax may apply, contact our team of criminal lawyers in Liverpool today. We will provide you with a first free consultation over the phone for 15 minutes.