Prosecuting Child Offenders: Factors Relevant to Rebutting the Presumption of Doli Incapax

Abstract

Despite existing since ancient times the presumption of doli incapax — that is, the presumption that children lack the moral and intellectual development to have the capacity to be guilty of crime — appears to be a relatively nebulous concept. Criticisms that the presumption is both over- and under-protective of children reveal diverse views and uncertainty about exactly how the presumption (and its legislative equivalents) does, and should, operate. This article takes the occasion of the recent High Court of Australia case of RP v The Queen (2016) 259 CLR 641 as a prompt to address this lack of clarity. It comprehensively reviews current case law to critically evaluate the sort of factors that have been used to establish that a child is sufficiently developed to be found criminally responsible.