Doli Incapax

In the early hours of the morning following Australia Day last year, 26 year old Patrick Slater was found dead in a Perth railway station, a 25cm chest wound had penetrated his aorta and both lungs. Last week, in the WA Supreme Court, five young adults and one teenager were found guilty of his murder. But not all those allegedly involved in the incident actually went on trial. The youngest – just 11 years of age at the time – remains in legal limbo, awaiting his fate. At that tender age, he achieves the unenviable record of being the youngest person ever to be charged with murder in Australia.

The case is yet another example of the tragic complexities the criminal justice system is so often forced to grapple with – at what stage of a young person’s development do we as a society choose to hold them criminally responsible for their decisions and actions? Where do we draw the legal line-in-the-sand determining when “time out” becomes “hard time”?

Throughout Australia, children under 10 cannot be convicted of a crime as it is legally presumed they are incapable of forming the requisite criminal intent. While the more hard-line observer may recoil in horror at such perceived leniency, it is well to note Australia has one of the lower ages of criminal responsibility in the world. In fact, we are internationally considered to be so harsh in our judgment of when our children should assume legal responsibility that we have drawn strident criticism from the United Nations which promotes an ”absolute minimum” age of 12.


Thankfully, there is some legal protection offered to our children when under 14 years of age. Children aged between 10 and 14 are also deemed incapable of forming criminal intent – but that presumption can be displaced by the prosecution. In order to convict such a child of any crime, the prosecution must rebut that presumption with evidence showing, as a matter of fact, the child knew the criminal act was seriously wrong as opposed to merely naughty or mischievous. This is known as the principle of doli incapax.

Doli incapax has a history almost as ancient as the Latin phrase itself. Examples of its existence can be traced back to the Middle Ages, and as early as 1619 it was expressed in England in the following terms:

“An infant of eight yeares of age or above, may commit Homicide …, and shalbe hanged for it, viz. if it may appeare (by hiding of the person slaine, by excusing it, or by any other acte) that hee had knowledge of good and euill, and of the peril and danger of that offence. But an infant of such tender yeares, as that he hath no discretion or intelligence, if he kill a man, that is no felony in him.”

While some may consider doli incapax to be motivated by compassion, sentiment, or soppy jurisprudential weakness, in truth it is soundly based on hard-headed science. It is a well-established neuroscientific fact that the brain’s prefrontal cortex, which governs skills such as impulse control and decision-making, does not fully develop until well after puberty. As a result, most children under the age of 14 are incapable of fully controlling their behaviour or of understanding the severity of the consequences of their actions. They are generally impulsive, self-centred, driven by instant gratification, easily led astray, and often wildly ill-informed.

In the modern world, the “third parent” television may also play a significant role in distorting a child’s understanding and actions. In particular, the extreme violence and mild consequences taught through movies and video games has led to commentators arguing that children may well be “shocked and distressed to discover that real people do not get up and walk away as they do after lethal attacks in cartoons”.

Meanwhile – newspapers, blogs, comments sections, and Facebook discussion groups blaze with indignant demands that child offenders give up their pound of flesh, and politicians line their ballot boxes with punitive legislation to placate the baying crowd. But in all the hubbub the important legal and scientific rationale behind the concept of doli incapax – one recognised in civilised society since at least the Middle Ages – should not be forgotten or abandoned.

As one of the few legal principles designed to protect children from themselves, this presumption allows children what they deserve – protection if they are unable to understand the wrongfulness of their actions and legal consequences if they do.


Post by Dan Rawlings, Criminal Lawyer