Immature Age (WA)
Immature age can be relied on by a child who is under 14 and charged with criminal offences. It is based on the presumption that a child between the ages of 10 and 14 should not be held criminally responsible as a child of this age is too young and insufficiently mature to be held legally responsible for their actions. This page deals with immature age in Western Australia.
Under section 29 of the Criminal Code Act, the age of criminal liability in WA is 10. This is the same as the age of criminal liability in all other states and territories. A child who is aged 10 or older can be arrested or summonsed and charged with criminal offences. Criminal matters involving children are dealt with by the Children’s Court.
Section 29 also states that a person under 14 cannot be held criminally responsible for an act or omission unless it is proved that they had the capacity to understand that they should not make the act or omission.
What is doli incapax?
Doli incapax is Latin for ‘incapable of evil’. It is a common law doctrine to the effect that a child under 14 is presumed to be too immature to be held criminally responsible. Although a child between the ages of 10 and 14 can be charged with an offence, they may rely on immature age (or doli incapax) to defeat the charge.
The prosecution bears the burden of proving that a child had the capacity to understand that their actions were wrong. They must show that the child knew that what they were doing was seriously wrong or wrong at law as opposed to simply naughty.
Immature age is not technically a defence. Rather, proving that a child under 14 had the capacity to understand the nature of their actions is an element of the prosecution case.
Evidence of capacity
The prosecution must rebut the presumption of doli incapax in order for the court to find the child guilty. To do so, it must adduce evidence that is strong and clear and beyond all contradiction. The older the child is, the easier it will be to rebut the presumption. The defence may also adduce evidence of the child’s lack of capacity.
Evidence that can be used to rebut the presumption includes statements and admissions made by the child, particularly during a police interview as these may reveal the child’s view of their actions and consciousness of guilt. The child’s behaviour before and after the act may also be revealing.
If the child has a past criminal history, this may be used as evidence that they have come into contact with the justice system before and been made aware of the types of actions that are wrong. However, the fact that a child has a prior record does not preclude them from relying on immature age in a later prosecution as the two matters may be of a very different nature.
The prosecution may also rely on evidence of the child’s home environment. If there is evidence the child has been ‘brought up well’ and taught about appropriate behaviour, right and wrong, and been made aware of the law this may be sufficient to rebut the presumption.
Evidence from teachers who know the child well may also be admitted. If this occurs, the court must consider the relationship between the child and the teacher, whether the subject is a matter that has been discussed in class and whether the child participated in that discussion. If the child has been disciplined at school for a similar offence, this will also be taken into consideration, although it must be stressed that there is a big difference between school rules and criminal liability.
Evidence from psychologists or psychiatrists may also be adduced as to the child’s level of maturity and capacity to understand the nature of the acts. An objective assessment is likely to provide a good indication of the child’s level of understanding at the time the assessment is done and their understanding at the time of the offence can often be extrapolated back from that. This evidence may be less useful if there has been a long delay between the offence and the matter coming to court.
It is worth noting that the type of offence in question cannot be used to prove a child’s capacity. The prosecution cannot assert that the accused must have known that the act was wrong because it is obviously wrong or because of the objective seriously of the alleged offence.
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