Doli Incapax

Question 1

What does ‘Doli Incapax’ mean?

Answer 1

Doli Incapax means “incapable of crime or wrongdoing”

Question 2

What age group does Doli Incapax apply to?

Answer 2

It applies to children between 10-14

Question 3

Explain Doli Incapax?

Answer 3

For children between 10-14, there is a rebuttable presumption they are doli incapax. Prosecution must prove child committed the offence with the mens rea. MUST prove beyond reasonable doubt that the child knew the act was wrong as opposed to an act of mere negligence or mischief.

Onus of rebutting lies with the prosecution

Question 4

How can presumption of Doli Incapax be rebutted?

Answer 4

• Interview with child
• Evidence of the child hiding evidence
• Evidence of their upbringing
• Prior convictions, answers given by child during questioning for previous crimes
• Previous events/intels re previous behavior

Question 5

Examples of questions to rebut Doli Incapax?

Answer 5

• Did you know it was wrong?
• What made you think it was wrong?
• What did you think would happen if seen or caught?
• Who did you think you would be in trouble with?
• Do you know what a crime is?
• What do you think happens to people who commit crime?

Question 6

Case Law for Doli Incapax

Answer 6

• Accused 13 Y/O woke victim during night in shared room with cousin

Accused brought victim into lounge room, forced to perform fellatio under blanket

Prosecution relied on furtive actions of child being time of night (waiting for everyone to sleep) and under
blanket.

On appeal, couldn’t be proven that the accused knew actions were seriously wrong as opposed to naughty.

The defendants guilty knowledge must not be mere proof of doing the act charged, however horrifying or obviously wrong it is