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Snapshot

  • 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.

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