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  • It is a steadfast presumption of criminal law that children aged 10 but not yet 14 lack sufficient intellectual and moral development to be held criminally responsible (presumption of doli incapax).
  • This article examines the recent judgment of the High Court in RP v The Queen [2016] HCA 53 and explores what the presumption requires and clarifies what sort of evidence has been held to be sufficient to rebut the presumption.

It is a steadfast presumption of criminal law that children aged 10 but not yet 14 lack sufficient intellectual and moral development to be held criminally responsible (presumption of doli incapax). This presumption has been subject to a degree of criticism in recent decades. Some claim it is over-protective of children and should be abolished, reversed or the age level reduced (see eg Lerve DCJ in R v GW [2015] NSWDC 52 at [41]-[46]). In contrast, others claim it is under-protective because the age level is too low and it is easily rebutted (Australian Law Reform Commission (1997). Seen and Heard: Priority for Children in the Legal Process, Report No 84). Many of these criticisms stem from a lack of clarity over how the presumption should operate and assumptions about childhood development and what affects a child’s ability to understand. This article will not rehash the criticisms (for discussion see Crofts (2016) ‘The common law influence over the age of criminal responsibility – Australia’ Northern Ireland Legal Quarterly, 67(3), 283-300). Rather, it will examine the recent judgment of the High Court in the case of RP v The Queen [2016] HCA 53 (‘RP v The Queen’), exploring what the presumption requires and clarify what sort of evidence has been held to be sufficient to rebut the presumption.

In RP v The Queen, the High Court was asked to determine whether there had been sufficient evidence to rebut the presumption of doli incapax on two counts of sexual penetration of a child under 10 years of age by a boy aged eleven and a half (the complainant was his brother aged 6 years and nine months at the time of these two counts). In finding that it had not been proved beyond reasonable doubt that the boy understood his acts to be seriously wrong, the High Court made some important observations about how the prosecution should approach rebutting the presumption.

Rebutting the presumption

The presumption can be rebutted if the prosecution brings evidence proving that the child understood what he or she did was seriously wrong.

Knowledge of ‘serious wrongness’

In R v M (1977) 16 SASR 589, this was interpreted in the same way as the requirement in M’Naughten Rules in cases of insanity as requiring an understanding of the moral not the legal wrongfulness of the behaviour. The question is therefore whether the child understood that the act was wrong according to the principles of reasonable people. In RP v The Queen, the High Court noted that in the case of children there is also the further dimension of proving ‘knowledge of serious wrongness as distinct from mere naughtiness’ (at [11]). The Court noted that what suffices to rebut the presumption ‘will vary according to the nature of the allegation and the child’
(at [12]).

Age of the child

It has been said that the starting point for assessing the degree of evidence needed is the child’s age, with less evidence required the closer the child is to the age of 14 (R v Whitty (1993) 66 A Crim R 462 at 465). However, the High Court correctly criticised this approach because it is ‘apt to suggest that children mature at a uniform rate’ (at [12]). The reason for a rebuttable presumption rather than a blanket presumption of incapacity is the recognition that children in this age period develop at different and inconsistent rates (see Cauffman & Steinberg (2000) ‘(Im)maturity of Judgment in Adolescence: Why Adolescents May Be Less Culpable than Adults’ Behavioral Sciences & the Law, 18, 741; and Blackstone (1769) Commentaries on the Laws of England, V).

Type of act committed

Another starting point is the type of act committed. In this regard it has been said that the more obviously wrong the act, the easier it will be to rebut the presumption (RH v DPP [2013] NSWSC 520 at [12]; R v ALH [2003] VSCA 129; C v DPP [1996] AC 1 at 39).

It is true that children will learn the seriousness of various acts at different ages. They are more likely to understand the wrongfulness of acts which they have direct experience of and do not require a complex understanding of social and economic relations (see Crofts (2002) The Criminal Responsibility of Children). However, care must be taken to not simply make inferences, such as: this act was so obviously seriously wrong that all children would understand this and therefore this child must have understood its wrongfulness. In R v ALH, Cummins AJA opined that proof of the acts committed can, without more evidence, be sufficient because ‘acts may be so serious, harmful or wrong as properly to establish requisite knowledge in the child’
(at [74], Callaway JA agreeing at [19]). While Cummins AJA noted that this approach was acceptable as long as adult judgments were not ascribed to children, it is problematic because it veers towards generalised assumptions. The reason why the guilty knowledge ‘must be proved by the evidence, and cannot be presumed from the mere commission of the act’ is to ensure that the individual child’s understanding is addressed (R v Smith (1845) 1 Cox CC 260; see also C v DPP at 38). It stops the prosecution and the court from simply inferring from the facts establishing the commission of the offence that the child understood the wrongfulness as an adult would have done in the circumstances. The High Court therefore correctly rejected the approach in R v ALH (at [9]).

This does not mean that inferences cannot be drawn from the circumstances surrounding the act. Careful planning of the criminal act, asserting a false alibi, making efforts to conceal the behaviour or hide the body of the victim have all been taken to indicate that a child understood the wrongfulness of the behaviour (RH v DPP [2013] NSWSC 520 at [28]; R v Sheldon [1996] 2 Cr App R 50; Re F (1998) 101 A Crim R 113 at 118–19; Eyre of Kent, 6 & 7 Edward II (1313–1314)). Running away from the police has also been accepted (JM v Runeckles (1984) 79 Cr App R 255 at 258), but equally it may show the child thought he or she had been naughty (A v DPP [1992] Crim LR 34 at 35).

Home background and intellectual and moral development

Rather than making generalised assumptions about the child’s understanding from their age level and offence committed, it is preferable to have evidence about the child’s intellectual and moral development and home background. This may come from reports of a psychologist, psychiatrist or school teachers (R v JA [2007] ACTSC 51). Where the report of a psychiatrist or psychologist is relied on, care must be taken to ensure that it is an accurate reflection of the child’s abilities at the time of the act.

In LMV [1999] NSWSC 1342, expert evidence from an interview with a psychiatrist was rejected because it took place 19 months after the incident and ‘not only had the accused grown older but much more importantly he had undergone very unhappy experiences resulting from the death of the deceased’ (at [11]). Similarly, with reports from school teachers, it must be remembered that they may only indicate a general level of understanding, not whether the child actually understood that what he or she was doing was wrong.

RP v The Queen [2016] HCA 53

In RP v The Queen the trial judge found the circumstances surrounding the commission of the acts established beyond reasonable doubt that the boy knew what he was doing was seriously wrong. These circumstances included that he used force, placed his hand over his brother’s mouth when he tried to call out to his sister, his brother was clearly distressed (he had cried and told the boy to stop), he stopped the intercourse after a few minutes when an adult returned and he told his brother not to say ‘nothin’ (at [21]). Evidence that the boy had used a condom was regarded as equivocal to establishing his moral understanding and was set aside. The second count occurred a few weeks later. It was held at first instance that the boy understood the earlier act to be seriously wrong therefore he also understood the wrongfulness of the later act.

The majority of the Court of Criminal Appeal (‘CCA’) agreed that these circumstances established that the boy knew that what he did was seriously wrong (RP v The Queen [2015] NSWCCA 215). Davies J felt this conclusion was strengthened by the fact that penile/anal intercourse was ‘obviously wrong’ – an approach which veers towards the problematic approach taken in R v ALH. Perturbingly, Johnson and Davies JJ agreed that proof that the boy understood the wrongfulness of the first act meant that he also understood the wrongfulness of the later act. Hamil J disagreed, opining that such a logical conclusion could not be made where the circumstances were significantly different in that there was no evidence that the boy used force, tried to stop the brother calling out, or said anything about not telling, and there was no evidence the that the brother cried or was demonstrably upset. In relation to the use of a condom, Davies J found that the correct approach was to disregard this evidence (at [69]).

The High Court began its determination of whether sufficient evidence had been adduced by pointedly commenting that the prosecution’s submissions were ‘apt to overlook’ the fact a child of this age is presumed in law incapable of bearing criminal responsibility and therefore the onus is on the prosecution to adduce evidence rebutting that presumption to the criminal standard (at [32]).

It noted that aside from inferences drawn from the circumstances surrounding the act, the only pieces of evidence adduced were a Job Capacity Assessment Report and a clinical psychologist report (conducted when he was 17 and 18 respectively and neither in relation to these charges). Both reports showed that he was in the borderline range of intellectual functioning, yet despite this the prosecution brought no further evidence. In the face of the evidence about the boy’s development the Court found the circumstances did not show that he understood the moral wrongfulness of his actions. It commented that it is common for children to engage in sexual play, may find it naughty and want to keep it secret. Even though the boy’s behaviour went far beyond ordinary experimentation it did not, on its own, lead to ‘a conclusion that he understood his conduct was seriously wrong in a moral sense, as distinct from it being rude or naughty’ (at [33]).

Further, in light of his intellectual development the conclusion could not be drawn that he knew his brother was not consenting and could see he was distressed. It could not be assumed that a child of this age ‘understands that the infliction of hurt and distress on a younger sibling involves serious wrongdoing’ (at [35]).

The majority also found evidence of condom use significant, and that it was erroneous to disregard it. They opined that ‘the fact that a child of 11 years and six months knew about anal intercourse, and to use a condom … was strongly suggestive of his exposure to inappropriate sexually explicit material or of having been himself the subject of sexual interference’ (at [34]). Such experiences could significantly affect the ability of the boy to understand the moral wrongfulness of the act and lead him to not think that his behaviour was seriously wrong.


One of the strongest messages coming from RP v The Queen is that if the prosecution believe a child should be held accountable for his or her criminal behaviour in criminal proceedings it must gather evidence to rebut the presumption, it cannot simply rely on assumptions and generalisations.

Thomas Crofts is Professor of Criminal Law & Director, Sydney Institute of Criminology, University of Sydney.