Following a judge-alone trial, RP was convicted of two counts of sexual intercourse with a child under the age of ten years. The accused was aged approximately 11 and a half years old at the time. The complainant was the accused’s younger brother.

The sole issue for the trial judge’s determination was whether the prosecution had rebutted the presumption that the appellant was doli incapax. The trial judge was satisfied that it was proven beyond reasonable doubt that the appellant knew his conduct was seriously wrong.

In short, the first offence occurred in circumstances where there were no adults present. The appellant grabbed the complainant, held him down, put his hand over the complainant’s mouth and committed the conduct constituting the offences. The intercourse stopped when an adult returned to the house. The appellant told the complainant not to say anything. The second offence, later in time, involved similar circumstances.

There was evidence that, when the appellant was older (aged 17 or 18) that he was assessed as being in the borderline disabled range of intellectual functioning.

The trial judge, in considering the circumstances surrounding the offence, found that the presumption was rebutted in relation to the first offence and that it followed the presumption was rebutted in relation to the second.⁷

The Court of Criminal Appeal dismissed the appellant’s appeal. The appellant appealed to the High Court.

The High Court (Kiefel, Bell, Gageler, Keane and Gordon JJ presiding) held that the convictions should be quashed, and verdicts of acquittal should be entered, on the ground that it was not open to conclude that the accused was proven beyond a reasonable doubt to have understood that his conduct was seriously wrong in the moral sense. In the absence of evidence with respect to the environment in which the appellant was raised or from which a conclusion could be drawn as to his moral development, it was not open to conclude that he understood his conduct to be seriously wrong, the plurality noting (per Kiefel, Bell, Keane and Gordon JJ at [9], [12]):

A number of principles can be derived from RP, as follows:

Each of these are dealt with, below.

An admission made by a child will often be sufficient to rebut doli incapax. Thomas Crofts¹⁵ argues:

The classic Australian case on point is the Victorian case of R (a child) v Whitty.¹⁶ In this case a child was arrested for shoplifting and when interviewed by police regarding the offence used the words, “I stole” (the goods). It was held that the use of these words was evidence of mischievous discretion. The child’s language was interpreted to indicate knowledge that the act of stealing was wrong, perhaps in contrast to the words “I took”.

However, before an alleged admission could be used as evidence to rebut the presumption of doli incapax, the usual questions relating to the admissibility of such evidence must be considered. Additionally, if admitted is the admission indicative of the child’s understanding at the time of the offence.

Despite the additional obligations placed on the prosecution to rebut doli incapax, a child is still entitled to rely on his or her right to silence. A child under 14 should be advised of the additional dangers of making a record of interview including that if the child elects to make a record of interview, the investigating police are likely to ask questions with the specific intention of rebutting doli incapax.

A child should not be put into any worse position than an adult offender and is entitled to attempt to exclude otherwise inadmissible admissions. A quick checklist includes:

Particular attention should be given to the circumstances surrounding the admission. For example, does it occur after arrest at a time when it is clear to the child that what they are alleged to have done was seriously wrong? Does it occur in response to leading or closed questions put to the child by police? If the admission is made in response to questioning, does the child appear to otherwise be particularly suggestible?

Another question that must be considered is, are the words attributed to the child “clear beyond all doubt or contradiction”? The alleged admissions must show that the child understood that his actions were seriously wrong and not just naughty. If the admissions are equivocal, or ambiguous, then it can be argued that the prosecution has not successfully rebutted the presumption.

In IPH v Chief Constable of South Wales,¹⁷ an 11-year-old boy was convicted of criminal damage to a van. The van’s windows were smashed, the paint work was scratched, and the van was pushed into a pole. The child was interviewed by police. During the interview, the child said, “Yeah, I knew I would damage the truck by pushing it into the pole”. On appeal, the Divisional Court said that the admission proved that the child knew that damage would result from the action. The admission did not prove knowledge that the action was seriously wrong as opposed to mischievous or naughty.

Consideration must also be given as to whether the admissions indicate the child’s understanding at the time of the alleged offence. The child’s intention must be assessed at the time of committing the offence. Any statements given by a child after the offence may have been tainted or affected by the process. It is arguable that since being arrested, taken to a police station and placed in a dock the child has come to an appreciation that he or she has done something wrong. This understanding may not have been consistent with the child’s state of mind at the time of the alleged offence.

In AL v R (2017) 266 A Crim R 1 (AL), the appellant was tried for historical sexual offences when the defendant was aged between 12 and 13 years and the complainant was aged between 4 and 5 years old. The charges were brought some 14 years after the offending took place. On appeal, the applicant submitted that the trial judge fell into error by failing to adequately address the jury on the question of doli incapax and that the evidence adduced at trial fell short of proof of the applicant’s knowledge of the serious wrongness of the act charged. The applicant contended that in light of RP the trial judge should have directed the jury to place little or no weight on the applicant’s evidence in cross-examination.

There was also evidence suggesting the appellant was a good student at school at the time of the offending.

The Court of Criminal Appeal held that on the totality of the evidence, the evidence was sufficient to prove the knowledge of serious wrongness beyond a reasonable doubt. The court stated:¹⁸

The court distinguished the facts of AL from RP, taking note of the evidence suggesting the appellant’s good performance as a student and lack of disadvantage. The court in AL held that the evidence adduced from cross-examination was not inadmissible, his recollection of his contemporaneous understanding of serious wrongness was relevant and the jury could give weight to that evidence.

While evidence of the act itself, no matter how horrifying, cannot be relied upon, evidence of the child’s behaviour before, after and going to the surrounding circumstances of the offence may be admissible.

In KG v Firth [2019] NTCA 5, the appellant appealed a decision of the Northern Territory Supreme Court to overturn the decision of the Youth Justice Court that the appellant lacked mental capacity to be held criminally liable under s 43AQ of the Criminal Code (NT). In that case, the appellant was 13 years old, he suffered significant intellectual disability, he suffered from Foetal Alcohol Spectrum Disorder, he was raised in dysfunctional and transient home environments, he suffered trauma from a young age including exposure to domestic and sexual violence.

The Court of Appeal articulated the categories of evidence relevant to the question of doli incapax at [27], being:

The Court of Appeal made a number of comments clarifying RP including that the rebuttal of the presumption does not require, in every case, the demonstration of knowledge of wrongness in a police interview, or evidence concerning the child’s social, medical and educational circumstances.¹⁹ Significant weight will ordinarily be given to the child’s psychologists views as to the ability to understanding right from wrong.²⁰

In some circumstances, the prior criminal history will be admissible to rebut doli incapax. Evidence of prior convictions, cautions or youth justice conferences may be admissible to demonstrate that the child has been in contact with the criminal justice system and has been told by the police or courts that those types of actions are criminally wrong.

However, the mere presence of a criminal history is not conclusive evidence. A child who has a criminal history is not precluded from raising doli incapax as an issue at a hearing for a later offence. A prior charge of assault does not necessarily mean that a child will have an understanding of the offence of goods in custody.

The elements of the offence and the complexity of the charge should also be carefully considered. In circumstances where the prosecution relies on complicity, common purpose, or omissions, there may be scope to argue the child was not aware that he or she was committing an offence.

Finally, if evidence of this type is admitted to rebut doli incapax it may be necessary to seek to limit the use of the evidence to this purpose under s 136 Evidence Act.

A common method of rebutting the presumption used to be for the prosecution to call evidence from parents, carers, guardians or family friends that can attest to the fact that the child knew that committing the alleged act was seriously wrong as opposed to naughty. Traditionally the evidence was directed at establishing that ‘they have brought the child up well, taught the child the difference between right and wrong, and made sure the child is aware of the law.

Historically it was open for prosecutors to simply call parents without notice to give evidence on these issues. The introduction of provisions for service of the brief of evidence avoids the ambush aspect of this approach and provides practitioners to consider the evidence in advance of the hearing. If a statement has not been served before the hearing, an objection can be made to on that basis.

Additionally, s 18 of the Evidence Act provides that a parent may object to giving evidence against the child as a witness for the prosecution. The witness must take the objection and the court must satisfy itself that the person is aware of their right to object to giving evidence.

General evidence of the child’s home background can be used to rebut the presumption. In B v R [1958] 44 Cr App R 1, a 9-year-old boy was convicted of break, enter and steal. The only evidence with respect to doli incapax was that the boy came from a respectable family and was properly brought up. The court held that the evidence of his upbringing was sufficient evidence to rebut the presumption. One of the criticisms of this approach is that a child who comes from a very poor background with limited opportunity for education, both social and formal, and with poor parental examples is more likely to avoid prosecution than a child that was brought up in a good home. However, others would argue this is the exact purpose of the presumption. It is questionable whether this case would be decided the same way since RP.

Each case must be approached from the subjective circumstances of the child and not the presumed normal understanding of a child of a particular age. A child who has a learning difficulty is not equal to that of a normal child. There may be cultural considerations that may also be important. For example, a child that comes from a community where there is less emphasis placed on ownership of objects may not understand that taking a bike from another child is seriously wrong. The facts and circumstances of each case, and each child, is important.

In C v DPP, Lord Lowry suggested that another way to rebut doli incapax is for the prosecution to obtain evidence from a teacher who knows the child well. It is argued that teachers will have been in close contact with the child and may be in a position to provide information that assists in understanding the child’s mental and moral development.

It is important to look closely at any statements from teachers. There is a world of difference between school rules and criminal liability. While a child may have an understanding of school rules it may not be appropriate to extrapolate this understanding to the wider world. Does an understanding to stay within bounds at school assist in determining whether a child understands that it is seriously wrong to sexually assault another child? The proposition that a child knows that an act is seriously wrong does not necessarily flow from what they have been taught at school.

Further, even if there is evidence that a child is taught certain things in a particular class (eg taught about consent in physical education classes), that is not in and of itself evidence that the child learnt or understood what was being taught to them. It might not even be proof that the child was necessarily present for such lessons, in the absence of school records that can establish they were.

Evidence from psychologists and psychiatrists may assist the court on the issue of doli incapax. In R v LMW (unrep, 25/11/99, NSWSC) a 10-year-old was charged with manslaughter and committed to the Supreme Court for trial. Ultimately, both prosecution and defence called evidence including objective assessment of the child’s cognitive capacity and an assessment by a child psychiatrist.

The decision to call evidence of this type will need to be carefully considered. The defendant obviously has the right to silence and cannot be forced to see a psychologist or psychiatrist. However, if the child had a pre-existing relationship with a psychologist or psychiatrist, it may be that there is highly relevant evidence of the psychological or developmental issues.

Alternately, the defence or prosecution may seek to obtain an assessment and report after the alleged offence. Such an approach requires the cooperation of the accused. However, practitioners should be aware that if a report is obtained by the defence, the prosecution is likely to make a request that the child also attends upon a psychiatrist or psychologist commissioned by the prosecution.

Objective testing by psychologists may give a strong indication of the child’s mental and cognitive abilities at the time of testing and by extrapolation of the likely levels at the time of the alleged offence. Subjective interpretation of even standard tests may lead to inconclusive, irrelevant, and potentially prejudicial material being presented. Inevitably any assessment is conducted after the alleged offence and after the child has been charged. There is always a real risk that any subjective assessment is contaminated by the charging and court process and precludes any useful insight into the mind of the child at the time of the offence.