Being criminal responsible for a crime is said to being able to distinguish between the right and wrongness of the crime.
Adults for the most part are thought of as criminally responsible by their age alone unless they raise a defence of some sort of mental impairment that was operating at the time of the offence that stopped them from knowing the difference between right and wrong.
When it comes to children it is a little more complicated.
Currently the age of criminal responsibility in Australia is 10 years old.
Before the age of 10 children cannot be held criminally responsible.
But after the age of 10 and before their 14th birthday there exist only a presumption in law that they are not able to know right from wrong and hence not criminal responsible.
This has a Latin term called ‘doli incapax’ meaning deemed incapable of forming the intent to commit a crime.
However, the prosecution can rebut this presumption and often do.
In rebutting the presumption, the prosecution must prove that:
The prosecution can use evidence from the child’s education, background, statements said by the child, conduct after the offence or in court and/or any previous occurrences with police or previous convictions.
Some argue the doli incapax is enough to protect young children as young as 10 from the criminal justice system.
However, Australia is one of the few countries left in the world that children as young as 10 can be held criminal responsible.
In fact, the doli incapx were criticised by the UK Courts for not providing enough protection for young children stating in C (A Minor) v DPP as being of ‘no utility whatever in the present era’. And later formally abolishing the presumption in 1998.
However, it still operates in Australia. But there is currently submission with the legislator to raise the age of criminal responsibility to at least 14 years of age.
This author agrees entirely with raising the age even to 16 years of age, however at least 14 is a good start and a huge improvement from 10 years of age.
As the statistics reveal in only one year alone across Australia up to 600 children aged 10 to 13 years were locked up and thousands more were hauled through the criminal legal system here in Australia.
AND Aboriginal and Torres Strait Islander children are disproportionately represented in these statistics, accounting for nearly 65 per cent.
Thus, the doli incapx presumption provides little protection for Australia’s young children and does not cater for the myriad of factors both in scientific and social studies that indicate a child’s brain is not developed enough.
Regardless of a child’s education and/or background so far experienced in their young lives a child’s brain cannot conceptualise the right or wrong criminal intent thought process required for the criminal law burden of proof.
As the UK Courts stated doli incapx is of ‘no utility whatever in the present era’.
If you wish to contribute and voice your support for raising the age of criminal responsibility in Australia see https://www.raisetheage.org.au/ for further details.
If you or someone you know has been charged with a criminal offence contact Rep-Revive Criminal & Employment Lawyers ® for a free initial consultation.
  3 WLR 885, 886.
 C (A Minor) v DPP  3 WLR 885, 886.