In New South Wales, the age of criminal responsibility is 10 years old. A child under 10 cannot be charged with a criminal offence. For children aged 10 to under 14, there is a legal presumption known as doli incapax, which assumes the child is incapable of forming the necessary intent to commit a crime. However, this presumption can be rebutted if the prosecution proves the child understood their actions were seriously wrong, not just naughty or mischievous.
There have been ongoing discussions about raising the age of criminal responsibility to 14, however no legislative change has been enacted in NSW.
In NSW, section 5 of the Children (Criminal Proceedings) Act 1987 provides that a child under the age of 10 years cannot commit an offence. This statutory presumption is irrebuttable.
The common law presumes that a child between the age of 10 and 14 years does not possess the necessary knowledge to have criminal intention, that is, the child is incapable of committing a crime due to a lack of understanding of the difference between right and wrong. This is the common law presumption of doli incapax.
The presumption of doli incapax is a presumption that can be rebutted by the prosecution calling evidence. In addition to proving the elements of the offence, the onus is on the prosecution to prove beyond reasonable doubt that the child knew that what they did was seriously wrong, as distinct from mere mischief.
The existence of the presumption of doli incapax in the common law was recently affirmed in RP v The Queen (2016) 259 CLR 641 (RP).
The defence and prosecution should consider doli incapax in all cases involving children under the age of 14.
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