What is it?
The term “Doli Incapax” is a Latin phrase meaning “incapable of evil”. It comes from the idea that people can be too young to form the understanding necessary to be capable of committing a crime.
Children under the age of 10 cannot be found guilty of an offence. This is known as the age of criminal responsibility. In some jurisdictions such as the ACT and Victoria this will age will soon be increasing to 12 and 14 respectively. However, as it stands children between 10 and 14 years of age can be found guilty if the prosecution can prove that child knew the difference between right and wrong.
Doli incapax is a rebuttable presumption, which means it is assumed a child between 10 and 14 cannot be found guilty of the crime, unless the Prosecution prove, beyond reasonable doubt, that the child was capable of determining the difference between right and wrong, at the time of the offence.
The prosecution must be able to show the child appreciated the moral wrongness of the alleged offence, rather than merely believing the conduct was naughty or mischievous.
How is it determined?
There are a number of factors the court considers when determining whether the child new the moral wrongness. The age of the accused is relevant as the closer to 14, the easier to rebut the presumption, whilst the closer to 10 the harder the task.
This test is subjective. It is insufficient for the prosecution to say a normal 13-year-old would know an act is wrong. The prosecution must show the child charged with a crime had actual knowledge that their actions were wrong.
Evidence that can be used to show the child’s understanding can include school records, evidence of the child’s background, statements from parents, and psychological evidence, amongst other things.
The seriousness of the crime, or proving the child committed the act, is not proof that they understood the wrongness. This means despite how “obviously wrong” or horrifying a crime appears, the act itself cannot be used to show understanding.
What is the controversy?
Australia has one of the lowest ages of criminal responsibility in the world. The global average is 14 years old. The United Nations Committee on the Rights of the Child has called for all countries to have a minimum age of 14+ years.
The UNSW Centre for Crime, Law and Justice highlights how the large majority of offences for which children are prosecuted for are not violent crimes. According to the Australian Bureau in 2020-21 the most common principal offences for 11, 12 and 13 year olds were acts intended to cause injury, theft, and unlawful entry with intent. Between the ages of 10 and 12, the proportion of Indigenous Australians who had their first contact with the criminal justice system was 30 to 56 times higher than that of non-Indigenous Australians.
Doli Incapax is only considered at court after the child has become part of the criminal justice system. They have already been charged, exposed to policing and in extreme cases, subject to periods of detention on remand. This means even if the child is found to be Doli, substantial harm has already accrued.
On 20 August 2020, the ACT became the first jurisdiction in Australia to support raising the age of criminal responsibility from 10 to 12 years. The ACT Attorney-General stated, “In 2023, the ACT Government will move a single Bill to raise the minimum age of criminal responsibility to 12, and then to 14 years within the 2 years after that.” Victoria is also expected to follow a similar course.
It remains to be seen how different states respond to the growing push to increase the age of criminal responsibility.
Rebecca Kriesler, Senior Lawyer
1 Children (Criminal Proceedings) Act 1987 (NSW)
2 RP v The Queen (2016) 259 CLR 641 at 
3 Amnesty International, “Why we need to raise the minimum age of criminal responsibility”, 25 January 2022 at www.amnesty.org.au/why-we-need-to-raise-the-minimum-age-of-criminal-responsibility/
4 UNSW Centre for Crime, Law and Justice, Replacing the Youth Justice System for Children Aged 10 to 13 years in NSW: A ‘best interests’ response, September 2021, p 14.
5 ABS, Recorded crime – offenders, Data downloads – Youth offenders – Table 21, 10 February 2022.
6 D Weatherburn and S Ramsey, Offending over the life course: Contact with the NSW criminal justice system between age 10 and age 33, Bureau Brief no. 132, NSW Bureau of Crime Statistics & Research, Sydney, 2018, p7.
7 ACT Government Joint media release – Released 03/11/2022