Doli Incapax – The Age of Criminal Responsibility in NSW

The age of criminal liability is the minimum age at which a person can be charged with a criminal offence. In New South Wales, the age of criminal liability is 10. 

Children Under 10

Under section 5 of the Children (Criminal Proceedings) Act 1987 (NSW), a child under 10 cannot be guilty of an offence.

Children Between 10 And 14

When a young person who is over the age of criminal liability but younger than 14 is charged with an offence, there is a presumption that applies known as Doli Incapax. This is the presumption that a child under 14 is not capable of being guilty of an offence. The presumption can be rebutted with evidence that the child did, in fact, know that their actions were seriously wrong.

In order for a child under the age of 14 to be found guilty, the Prosecution must rebut the presumption of Doli Incapax as an element of the Prosecution case, in addition to proving the offence itself. The Prosecution bears the onus and must prove, beyond reasonable doubt, that the presumption does not apply.

The Prosecution will need to prove that the child appreciated the moral wrongness of the alleged offence, as opposed to being aware that the conduct was merely ‘naughty’. It is important to note, that the mere act of offending itself cannot be relied upon to rebut Doli Incapax; however, evidence may be adduced by the Prosecution regarding the surrounding circumstances of the offending. 

The fact a child has previously been dealt with, either in Court or via Court alternatives such as police cautions or youth justice conferences, is not determinative in rebutting Doli Incapax. 

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.