The common law recognised that children below the age of seven (often termed “the age of discretion”) were not criminally responsible for their acts. The common law also long distinguished a second age range for liability, above the absolute minimum, in which the individual child may be assessed for sufficient capacity (since at least the reign of King Edward III, 1327–1377).⁵ The upper threshold of 14 years was set around the first half of the seventeenth century.⁶ A child over seven but less than 14 was presumed to be “doli incapax”, or incapable of forming a criminal intent.

In New South Wales (and all Australian jurisdictions) the minimum age of criminal responsibility has been set by statute at 10 years: Children (Criminal Proceedings) Act 1987 (NSW) s 5.⁷ The legislature has not otherwise interfered with the common law position. The result is that in New South Wales, the common law rebuttable presumption of doli incapax is applied to children between 10 and 13 years of age (inclusive): BP v R [2006] NSWCCA 172 (BP) at [27]. It is also applied in Victoria and South Australia: R v ALH (2003) 6 VR 276 (ALH) at [20], [24] and [86]; The Queen v M (1977) 16 SASR 589 (M). In the remaining Australian jurisdictions the presumption has been replaced with statute.⁸ The language used varies between jurisdictions, but the provisions have either been accompanied by an express legislative intention to “repeat” the common law or else silence as to the desired effect of the provision.⁹

In RP v The Queen [2016] HCA 53; (2016) 91 ALJR 248 (RP) the High Court noted that “[t]he rationale for the presumption of doli incapax is the view that a child aged under 14 years is not sufficiently intellectually and morally developed to appreciate the difference between right and wrong and thus lacks the capacity for mens rea.¹⁰

In RP the appellant was convicted, after a judge alone trial, of two counts of sexual intercourse with a child under 10 years. The complainant was the appellant’s half-brother. At the time of the offending, the appellant was aged approximately 11 years and six months and the complainant was aged six years and nine months. The only issue at trial was whether the prosecution had rebutted the presumption of doli incapax by proving that the appellant knew that his actions were seriously wrong in a moral sense.

The first offence took place in circumstances where there were no adults in the house; the appellant grabbed the complainant and held him down; the complainant was crying and protesting; the appellant put his hand over the complainant’s mouth; and the appellant stopped the intercourse when he heard an adult returning to the house and told the complainant not to say anything. The second offence took place a few weeks later, in circumstances where: the appellant and complainant were again without adult supervision; the appellant took hold of the complainant; and the appellant stopped intercourse when he heard an adult returning. There was also evidence that, when the appellant was aged 17 and 18 years old, he was twice assessed as being in the borderline disabled range of intellectual functioning and was found by the trial judge to be of “very low intelligence”. The trial judge held that the circumstances surrounding the first offence proved beyond reasonable doubt that the presumption was rebutted in relation to that offence. His Honour found that it logically followed that the presumption was rebutted in relation to the second offence.

The Court of Criminal Appeal dismissed the appellant’s appeal against his two convictions. The Court unanimously held that the presumption was rebutted in relation to the first offence. A majority of the Court held that it was also rebutted in relation to the second offence, finding that the appellant’s understanding of the wrongness of his actions in the second offence was informed by the finding that he knew his actions in the first offence were seriously wrong. The appellant was granted special leave to appeal to the High Court of Australia. The appeal raised fundamental questions regarding the principle of doli incapax which are dealt with below.

The onus is on the prosecution to prove that the child is doli capax (that is, not doli incapax). Accordingly, the prosecution must call evidence to prove, to the criminal standard, that the presumption does not apply.¹² The determination of whether the presumption has been rebutted is a matter for the tribunal of fact.

“No matter how obviously wrong the act or acts constituting the offence may be, the presumption cannot be rebutted merely as an inference from the doing of that act or those acts.”¹³ If at the end of the prosecution case, no evidence has been called to rebut the presumption, the prosecution has failed to establish their case. The defence may make a no case submission in this circumstance.¹⁴

Where evidence relevant to rebutting the presumption is adduced, the defendant may choose to call evidence in response. However, there is no requirement for the defendant to establish that the presumption applies.

It has been repeatedly said that in a case in which the presumption of doli incapax applies, the prosecution must prove beyond reasonable doubt that when doing the act charged the child “knew it was seriously wrong, as distinct from an act of mere naughtiness or mischief”.¹⁵

It had been observed that this test is simply stated but difficult in application: RP v the Queen [2015] NSWCCA 215 at [129] (RP CCA Decision) per Hamill J and, see also, C v DPP at [53](3) and [73].

In RP, the High Court made clear that the test is directed to “[k]noweldge of moral wrongness”.¹⁶ Whilst not new, this stress is an important part of the decision in RP. A child’s acknowledgment that he or she understood that an act was “seriously wrong” will not, of itself, provide an indication that the child appreciated the moral wrongness of the act or omission. That is, a child might view conduct as “seriously wrong” in the sense that he or she is likely to be in serious trouble if found out, without the requisite understanding of the act for the purposes of criminal responsibility. Focussing on the child’s belief that the act was more than mischievous or naughty may tend to obscure what it is that has to be established.

Further the evidence must concern the particular child. In RP the High Court noted at [12]:

In relation to the specific offences in that matter, the Court said at [35]:

Assuming a child within a certain age range has a proper understanding of which intrusive acts are permissible, in what circumstances, and by whom, and which might be seriously wrong as opposed to frowned upon, naughty or merely wrong, fails to give effect to the presumption and may reverse the onus of proof. It is also contrary to the psychological and neurological understanding of the moral development of children and adolescents. Knowing something is “seriously wrong” involves:

To rebut the presumption, the prosecution must adduce evidence that proves, beyond all doubt, that the child knew that his or her actions, in committing the offence, were seriously wrong. In C v DPP Lord Lowry described the quality of the evidence that the prosecution was bound to adduce, at [38C]:

As noted above, it is essential to focus on the child’s capacity and not that of a hypothetical child. In this regard, it has been recognised that in jurisdictions where the protection of the absolute presumption is not available to children over 10 years, the rebuttable presumption at least allows for the “vast differences” in the development of the capacities necessary for criminal responsibilities between individuals of the same biological age to be taken into account and, in theory, for children under 14 lacking adult capacity to be protected.¹⁸

The ability of children, even at the upper end of the presumption age range, to understand the “serious wrongness” of an act (or omission), cannot be presumed, and, if anything, from a modern neurological perspective, remains presumptively in doubt throughout adolescence.

In RP, apart from evidence of the acts said to constitute the offences themselves, and the circumstances surrounding those events, the only evidence of the appellant’s capacity was contained in experts’ reports addressed to the appellant’s capacity at ages 17 and 18, in relation to different issues, (themselves made some five to six years after the offending conduct).

The circumstances around the events established that the appellant knew the conduct was wrong in at least some sense. (He was anxious to avoid parental scrutiny of the acts.) He also, from the reaction of the complainant, could be inferred to have known that he was causing his brother significant distress. This latter fact was regarded as being of particular significance in the determination in the CCA. The Court, however, had no evidence directed to the appellant’s intellectual or moral development at ages 11–12. As such, the appellant submitted that the CCA misconceived the nature of the presumption and the quality of evidence necessary to rebut it beyond a reasonable doubt in finding that the presumption was rebutted.

The appellant in RP also submitted that various aspects of the Crown’s evidence tended to cast doubt on the appellant’s capacity; namely, that the appellant may have thought the actions were not seriously wrong because he had been himself subjected to sexual abuse or else had been inappropriately exposed to pornography. The expert reports served to underscore this possibility.

The report of a psychologist, Mr Champion, raised the possibility that the appellant may have been experiencing PTSD type issues which may have flowed from “past adverse events such as possible molestation or exposure to violence in earlier years”, stated that the appellant “does not have the level of understanding of the proceedings that a person of his age with average intelligence would have”; and noted his disadvantage “by reason of his intellectual limitations”: At the time of the report the appellant fell within the “borderline disabled range” (albeit towards the top of that range), meaning his IQ was 79 or less. A Job Capacity Assessment Report, conducted two years earlier, was also tendered in the Crown case. This also cast doubt on the appellant’s capacity. The evidence suggestive of molestation, considered together with the act itself and use of the condom, also gave rise to a strong inference that the appellant had himself been inappropriately sexualised.

In relation to that evidence Davies J said (RP CCA Decision at [67]):

Davies J’s criticisms of the report can be accepted. However, it was not for the appellant to prove a lack of capacity. The High Court ultimately accepted that the reports served to highlight the gap in the prosecution evidence.

Importantly, the High Court accepted that the conduct itself (far from proving that the presumption was rebutted), raised a real question as to the appellant’s understanding of his act. The plurality said (at [34], footnotes omitted):

The High Court agreed that the prosecution had not established, to the criminal standard, that the appellant knew his actions were “seriously wrong”, as at [36]:

Importantly, the fact that the appellant may have been aware he was causing great distress to another human being was not sufficient to establish that he was aware that what he was doing was seriously wrong for the purposes of rebutting the presumption (see RP at [35]; cf the approach of the trial judge in RP set out by the CCA at [34]; and Hodgson JA in BP at [30]). The absence of evidence as to RP’s development meant that the necessary inference could not be drawn from this circumstance.

In C v DPP Lord Lowry commented that, apart from evidence of what the child has said or done (in addition to the alleged act), the prosecution must rely on interviewing the child or having him or her psychiatrically examined, or on evidence from someone such as a teacher: at [70]. To this might be added a requirement that the evidence address the moral maturity (which Lord Lowry distinguished from mental development: at [70]) of the child at the time of the offending.

There had been a divergence between NSW and Victoria as to whether the act constituting the offence could be sufficient (together with the child’s age) to rebut the presumption beyond reasonable doubt. It was held in C v DPP and R v CRH (unreported, NSWCCA, 18 December 1996, Smart, Newman and Hidden JJ) (CRH), that although the act is relevant, there must be more than proof of the act charged. In Victoria, Cummins AJA held in ALH that the requirement “that mere proof of the act charged cannot constitute evidence of requisite knowledge” (at [86], Callaway JA and Batts JA agreeing at [20] and [24]):

The High Court resolved this divergence in RP stating, at [9]: