A Child’s Capacity to Commit Crime: Examining the Operation of Doli Incapax in Victoria (Australia)

Abstract

The rebuttable presumption of doli incapax is available in all Australian states and territories and provides that, where a child is unable to comprehend the distinction between actions that are ‘seriously wrong’ and those that are ‘naughty or mischievous’, they cannot be held criminally responsible for their actions. Despite the key role that doli incapax should play in diverting the youngest offenders away from the criminal justice system, its operation to date has been largely unexamined. This article seeks to directly address this gap. Drawing on the experiences of those involved in all aspects of the youth justice system, this article examines the need for, and the effectiveness of, the presumption of doli incapax in Victoria, Australia. Revealing inconsistencies in the use of the presumption, the article also examines the need for future reform of this area of law.