Prosecuting Child Offenders: Factors Relevant to Rebutting the Presumption of 'Doli Incapax'

Sydney Law Review, 40:3, 2018, pp. 339 - 365

Sydney Law School Research Paper No. 18/79

29 Pages Posted: 16 Jan 2019

See all articles by Thomas Crofts

Thomas Crofts

The University of Sydney Law School

Date Written: November 27, 2018

Abstract

Despite existing since ancient times the presumption of 'doli incapax' - that is, the presumption that children lack the moral and intellectual development to have the capacity to be guilty of crime - appears to be a relatively nebulous concept. Criticisms that the presumption is both over- and under-protective of children reveal diverse views and uncertainty about exactly how the presumption (and its legislative equivalents) does, and should, operate. This article takes the occasion of the recent High Court of Australia case of RP v The Queen (2016) 259 CLR 641 as a prompt to address this lack of clarity. It comprehensively reviews current case law to critically evaluate the sort of factors that have been used to establish that a child is sufficiently developed to be found criminally responsible.

Keywords: age of criminal responsibility, presumption of doli incapax, criminal responsibility of children, children and criminal law, RP v The Queen (2016) 259 CLR 641

JEL Classification: K10, K14, K30

Suggested Citation

Crofts, Thomas, Prosecuting Child Offenders: Factors Relevant to Rebutting the Presumption of 'Doli Incapax' (November 27, 2018). Sydney Law Review, 40:3, 2018, pp. 339 - 365; Sydney Law School Research Paper No. 18/79. Available at SSRN: https://ssrn.com/abstract=3291021

Thomas Crofts (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

Register to save articles to
your library

Register

Paper statistics

Downloads
23
Abstract Views
122
PlumX Metrics