Law intern finds doli incapax is not protecting children from entering youth justice system

We were lucky enough to have our first law student complete an internship with our office last year. We set Brooke the task to research the concept of doli incapax and how it is applied to children under the age of 14 who come before the youth court.

But first, what is doli incapax? If a child is between the ages of 10 and 14, they are presumed to be doli incapax (from the Latin ‘incapable of evil’) and cannot be convicted of a crime, unless the prosecution can prove the child had the mental capacity to understand what they did was seriously wrong, and not just ‘naughty’.

Through Brooke’s research and hearing first-hand accounts of how doli incapax operates in South Australia from various stakeholders, it has become clear that doli incapax is not working as it is intended.

Brooke found that, instead of the prosecution meeting its requirement to prove the child did have the necessary mental capacity, doli incapax is commonly viewed as a ‘defence’. This means that defence lawyers are having to prove the child did not have the mental capacity to tell the difference between serious wrongdoing and naughtiness. Although the common law presumes that children under the age of 14 do not have capacity to commit a crime, this reversal of the onus means that, in practical terms, those under 14 are assumed to have capacity and defence lawyers must disprove it.

Brooke also found that:

 – Doli incapax assessments, which are commonly relied upon to establish a child’s doli incapax status, can be difficult to get, take a large amount of time to complete and can see children and young people remanded and bailed from Kurlana Tapa Youth Justice Centre multiple times       while they are undertaken

– There is a lack of understanding as to how the presumption should be applied throughout the youth justice community, especially from SAPOL

– Children and young people who are Aboriginal, in the care of the Department for Child Protection, have a disability and/or live in regional, rural or remote areas are particularly disadvantaged by the youth justice system

– There are limited services available to help children and young people who are doli incapax (ie do not sufficiently understand the nature of their behaviour) to correct their behaviour and avoid reoffending in the same way

Based on her research findings, Brooke made the following recommendations on how this law could better protect children from entering the youth justice system in the first place:

– Raise the minimum age of criminal responsibility to 14 years of age

– Alternatively, insert the principle of doli incapax into legislation to clearly outline its application

– Increase referral services for doli incapax children and young people to teach them why their behaviour was wrong and help them to change it

– Ensure that the meaning and implications of doli incapax is included in SAPOL interview procedures

– Ensure that those who use children and young people below the age of 14 to commit crimes on their behalf are held criminally responsible

Brooke’s research and recommendations offer a valuable insight and perspective into how we can ensure better outcomes for children under 14 years old who find themselves before the courts. Unfortunately, there is extensive evidence that the younger the child is when they come into contact with the youth justice system, the more likely they are to reoffend – and start on a path to life-long involvement in the criminal justice system. This issue only highlights our ongoing call to urgently raise the minimum age of criminal responsibility from 10 to 14 years – a concern which was also raised by the United Nations last month.

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One Comment

  1. Fantastic report. Well done to Brooke and the Office for this study. I sincerely hope that Penny and everyone who works for her continues to advocate strongly for the age of criminal responsibility to be raised.

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