The law attributes criminal liability where a person has committed the criminal act (actus reus) with a criminal mind (mens rea), commonly referred to as ‘intent’. However, society does not hold young children accountable for their actions to the same extent as adults, and the law provides a protective safeguard against the harshness of the justice system through the presumption of doli incapax. By deeming young children literally ‘incapable of evil’, the presumption removes the requisite mental element of the offence, and thereby the possibility of attributing criminal responsibility.

In NSW, this presumption is irrebuttable for children under the age of 10 years, i.e. there is no exception to this ‘rule’. So, a 9-yr-old, for example, may be physically able to commit the crime of theft by shoplifting a toy (actus reus), but because he or she is deemed to lack the requisite knowledge to have criminal intent (mens rea), taking the toy was not a crime in the eyes of the law.

For children aged between 10 and 14 years, however, this benevolent safeguard can be removed by clear evidence that the child in question knew that the act was seriously wrong as distinct from merely naughty or mischievous. Guilty knowledge will be easier for the prosecution to prove in cases involving older children.

At law, the presumption is not a defence; it is an element of the case to be proven by the prosecution. In a recent case, two boys, who were aged 12 at the time, were accused of sexually assaulting a 6-yr-old girl in a toilet at their primary school. The court dismissed the three most serious charges of sexual intercourse without consent (rape) because the prosecution failed to rebut the presumption. Further charges of indecent assault were subsequently dropped, and the police were ordered to pay the boys’ court costs, which totalled more than $20,000.

The common law presumption of incapacity can be traced back to the Laws of King Ine from 688AD. Criticism of the rule undoubtedly has a history almost as long. In response to calls to ‘modernise the archaic rule of doli incapax’, the UK parliament abolished the rebuttable presumption for children aged 10 but not yet 14. This criticism was fuelled in part by public reaction to the 1993 trial of two 10-yr-olds for the murder of a toddler, James Bulger. In that case, the presumption was rebutted by establishing that the boys had tried to conceal the crime by placing the victim across railway tracks in the hope that a train would hit him and make his death appear to be accidental. Australia did not follow the UK’s lead at the time, but discussion around the need for reform has continued.

With the increased level of access to the internet, social media, and mobile phone technology among children, it is arguable that children between the ages of 10 and 14 are more sophisticated and have a greater understanding of the world than ever before. However, access to a greater amount of information or greater use of modern technology does not necessarily mean children have a greater maturity or understanding of the difference between right and wrong.  It could even be argued that this access is making it more difficult for children to learn how and where to make that distinction.

As the Australian Senate considers the adequacy of cyberbulling laws, and the appropriateness of prosecuting children for online harassment, and with the introduction of new revenge porn laws in NSW, it is likely that debate over the wider issue of the relevance and need for doli incapax to shield children from punitive sanctions for adult crimes will be reignited.

If we can be of further assistance, please call Sydney Criminal Defence Lawyers on 1300 885 646 or on 0420 998 650 (after hours).

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