On occasion, a child may be charged with a crime. A common question that arises in criminal law is how old a person has to be before they can be convicted of an offence. Section 5 of the Children (Criminal Proceedings) Act 1987 states that no child under the age of 10 can ever be found guilty of an offence. However, there is a common law rule which states that a child between the ages of 10 and 14 also cannot commit a crime unless the Prosecution can prove that the child knew the difference between right and wrong. This rule is known as the common law doctrine of doli incapax.
What is Doli Incapax?
Doli Incapax is a long standing common law doctrine that is a fundamental element of New South Wales criminal law. Translated from Latin as ‘incapable of evil’, doli incapax states that a child between the ages of 10 and 14 cannot commit a crime because he or she does not understand the difference between right and wrong. As such, the presumption applies to any child falling within the age bracket.
It should be noted that the doctrine of doli incapax is not an absolute rule; rather, it is a rebuttable presumption. This means that a child between the ages of 10 and 14 may be convicted of a crime if the Prosecution can demonstrate that the defendant child was, at the time, able to distinguish between right and wrong. If they fail to prove beyond a reasonable doubt that the defendant child knew the difference between right and wrong, the presumption of doli incapax operates and the defendant will be found not guilty of the offences.
Rebutting the Presumption
Before the Prosecution can rebut the presumption of doli incapax, there are a few rules that need to be considered.
Firstly, any evidence the Prosecution wishes to give to the Court to rebut the presumption must be absolutely clear; that is, free of any contradictions. The purpose of this rule is to prevent the Prosecution from rebutting the presumption and convicting a child who has been merely naughty.
Secondly, the Prosecution cannot claim that if they prove the defendant committed the act then, by default, they have proved that the defendant knew that what they were doing was criminally wrong. Rather, the Prosecution has to demonstrate that the defendant had actual knowledge that what he or she did was seriously wrong behaviour and not merely naughty behaviour. Furthermore, the Prosecution cannot state that the defendant must have known because of how serious the criminal act was. Despite however horrifying or obviously wrong the alleged act was, the act itself cannot be used to prove that the defendant had knowledge of his or her own criminality.
Finally, the age of the defendant at the time the alleged offence was committed is relevant. The closer the defendant is to 14 years old, the easier it is for the Prosecution to rebut the presumption. The chances of the defendant knowing that his or her actions were criminally wrong are increased the closer the defendant gets to his or her 14th birthday. Nonetheless, the Prosecution cannot claim that the defendant must have known his or her actions were criminally wrong because a ‘normal child’ of the same age would have. The Prosecution must bring positive proof that the defendant child had actual knowledge that his or her actions were criminally wrong.
In rebutting the presumption, doli incapax essentially becomes another element of the offence that the Prosecution must prove before the defendant can be found guilty. This significance of this is that doli incapax is seen as an element of the prosecution case; it is not a defence to the charges against the defendant.