By Paul Gregoire and Ugur Nedim
Doli incapax refers to the presumption that a child under the age of 14 is incapable of a crime under legislation or common law. This is presumed because a young child has not yet developed the intellectual or moral capacity to appreciate the difference between right or wrong.
This means that younger children are presumed not to be able to form mens rea, or the ‘guilty mind’, required to be guilty of a criminal offence.
Under Section 5 of the Children (Criminal Proceedings) Act 1987, children under the age of 10 cannot be found guilty of a crime in New South Wales.
But when charges have been laid against a person who allegedly committed a crime when they were between the ages of 10 and 14, the prosecution can argue that the accused had the ability to possess criminal intent, thereby refuting doli incapax. If the presumption is refuted, the accused can be convicted of the crime.
Arguments surrounding doli incapax formed the basis of a recent case heard by the High Court of Australia: RP versus The Queen.
The initial court case
In August 2014, the defendant – known only as ‘RP’ – stood trial in the District Court of NSW. RP, who was 20-years old when tried, faced two counts of aggravated indecent assault and two counts of sexual intercourse with a child under the age of 10.
The trial judge found him guilty of all charges except one of aggravated indecent assault.
At the time the aggravated assault, RP was just over 12 years old, and when the two acts of sexual intercourse occurred, he was 11 and a half.
The acts were perpetrated upon RP’s younger brother, who was around the age of 7 at the time. The brother reported the incidents to police during an interview when he was 15 years old.
Doli incapax rebutted
The District Court trial judge found that doli incapax was refuted in respect of the first count of sexual intercourse.
The facts of that event were that RP had been left in charge of his brother and two other siblings. A quarrel broke out, which resulted in RP locking his brother in a room. RP then entered the room, put on a condom, threw his brother on the bed and had anal sex with the boy.
The judge reasoned that RP realised what he was doing at the time was seriously wrong, because he used force, placed his hand over his brother’s mouth to silence him and saw that his was distressed.
The judge also noted that RP stopped the act when he heard an adult returning home, and instructed his brother to say “nothin.”
The judge found that if RP possessed the capacity to know he was doing something wrong for one act, then he must have also known the other two acts were wrong.
RP was sentenced to 2 years and 5 months in prison.
The Supreme Court appeal
RP appealed the decision to the NSW Court of Criminal Appeal, a division of the Supreme Court.
That court rejected the trial judge’s logic that if doli incapax was rebutted on one count, then it should follow that it is rebutted on all counts.
However, the judges found that the trial judge was correct in finding the presumption was refuted for the two sexual intercourse offences.
The judges further found that the trial judge was wrong to do so for the charge of aggravated indecent assault, which related to an occasion whereby RP rubbed at the crotch of his brother’s pants for approximately five minutes.
The NSW quashed the aggravated indecent assault charge, but RP’s prison sentence was nevertheless confirm.
RP then took his appeal to the High Court of Australia, which announced its judgment in December 2016.
The High Court findings
The highest court in the land found that despite the trial judge finding RP “possessed a lesser appreciation of the seriousness of his conduct,” the prosecution produced no evidence – apart from the circumstances of the offences – to establish that he “understood the moral wrongness of his acts.”
During the initial trial, a report by clinical psychologist Mr Champion was entered as evidence. The psychologist had given RP an IQ test at the age of 18, which suggested that his intellect was at “the top of the borderline disabled range.”
Mr Champion remarked that RP’s upbringing was marked by “turmoil and dysfunction,” and that he possessed innate limitations. He also found that RP may have been exposed to violence and was possibly a victim of molestation whilst growing up.
The High Court reasoned that while the sexual acts carried out by RP were extreme, they did not reveal that the boy was aware they were morally wrong, as distinct from being naughty or rude.
The fact that the 11-year-old knew about anal sex and how to use a condom was found to be a sign that he may have been exposed to sexually explicit material or the subject of sexual interference.
The court found that Mr Champion’s report provides support for that conclusion.
Insufficient evidence
The court criticised the prosecution for failing to call RP’s father or any of his other siblings to testify about the environment he’d been brought up in.
The justices noted that the conclusion RP was aware of the wrongfulness of his acts was drawn from inferences that he knew his brother wasn’t consenting and was in distress at the time.
They found that it cannot be assumed that a child as young as 11 understands that inflicting hurt and distress on a younger sibling involves serious wrongdoing.
And that while RP’s intellectual limitations did not necessarily mean he couldn’t possess an understanding of the moral implications of his actions, evidence must still be produced to clearly show he did in order for the presumption of doli incapax to be rebutted.
The court further found that the fact that RP was left at home in charge of his siblings at the age of 11 was not a sign of his maturity, but rather displayed an inadequacy of arrangements to take care of children. And there was no evidence relating to the boy’s performance at school.
Doli incapax upheld
For those reasons, the High Court found it could not be concluded beyond a reasonable doubt that the boy was aware that having sexual intercourse with his younger brother was wrong.
It ruled that his two remaining convictions be quashed, and entered a verdict of acquittal.
