RP v The Queen: Doli Incapax

In 2016, the High Court of Australia handed down a decision that has changed the way many courts assess the criminal responsibility of young children. The matter of RP v The Queen was an appeal from the New South Wales Court of Criminal Appeal by a young man who had been found guilty of three offences involving sexual contact with a child under 10, all of which occurred when he was under 13. This page outlines the decision and its implications for matters involving criminal charges against children under 14.

Doli incapax

Under the common law, there is a rebuttable presumption that a child under 14 is doli incapax, or incapable of evil.

This means that when a child under 14 is charged with an offence, the court must not find them guilty unless the prosecution adduces evidence that establishes that the child knew that their actions were seriously wrong, as opposed to mere naughty or mischievous.

The presumption is based on the view that a child under 14 is insufficiently developed, intellectually and morally, to understand the difference between right and wrong and to have a criminal intent.

In some Australian states and territories, the doli incapax doctrine has been codified in the Criminal Code or Crimes Act. In other states, the common law understanding of the doctrine is relied on.

RP v The Queen

RP v The Queen was an appeal against convictions against a young man for having sexual intercourse with his younger brother when he was aged 11 and a half and his brother was aged six years and nine months, and for indecently assaulting his brother when he was aged twelve and three months and his brother was aged seven years and five months.

RP was charged with two counts of sexual intercourse with a child under 10 and one of aggravated indecent assault. He contested all the charges on the basis that he had been doli incapax at the time of the offences.

The following evidence was before the court:

• A Job Capacity Assessment Report prepared based on an assessment when he was 17, in relation to whether he was eligible for a Centrelink benefit. The report referred to an IQ test that placed him in the borderline range of intellectual functioning. He was described as having moderate difficulty with social and occupational functioning and placed on the Disability Pension.
• A psychological report prepared when he was 18, which placed him in the top of the borderline disabled range. The report indicated that his low score may have been the result of a combination of innate limitation and educational and social deprivation. The report described him as naïve and unsophisticated and reported that the had been transferred from a mainstream school to a special school during Year Nine due to behavioural issues. His upbringing was described as unsatisfactory in some respects, including being exposed to violence and the possibility that he had been sexually interfered with.

The Supreme Court rejected RP’s defence of immature age, finding that the circumstances of the offences established that he knew that what he was doing was seriously wrong. It made this finding on the basis of evidence that the accused had covered his brother’s mouth to stop him from screaming, the fact he had used force, the fact his brother had obviously been distressed, the fact that the offences were committed behind closed doors, and the fact that RP had said after the first offence ‘Don’t say nothin’” when he heard the adults returning home.

The court found RP guilty of all three counts. He was sentenced to a total effective sentence of two years and five months imprisonment.

Procedural steps

RP appealed to the Court of Criminal Appeal on the basis that the doli incapax presumption had not been effectively rebutted in relation to any of the three charges. He also appealed against the sentence.

The Court of Criminal Appeal found that doli incapax had been effectively rebutted in relation to two of the charges, but not in relation to the third offence. The court quashed the conviction for one of the counts of sexual intercourse with a child under 10 but upheld the other two convictions. It dismissed RP’s appeal against his sentence.

RP then appealed to the High Court.

The High Court decision

The High Court found that the prosecution had failed to rebut the presumption that the accused was doli incapax in relation to all three charges.

The trial court had not heard evidence of the circumstances under which the accused had been raised and as such, could not draw conclusions about his moral and intellectual development. lt found that the circumstances of the offending, as well as one of the reports that was before the trial court, gave rise to the inference that the accused may himself have been sexually interfered with. However, the prosecution did not call evidence about his upbringing.

The court found that it could not be assumed that the accused had known that his actions were seriously wrong because his brother was distressed or because his brother was clearly not consenting to the sexual activity. The fact that there was evidence that the accused was of low intelligence gave rise to a clear need for evidence to rebut the presumption of doli incapax.

The court did not hear any evidence about RP’s upbringing, performance at school, or any other matters that could inform conclusions about his moral development. In the absence of such evidence, it was not open to the court to conclude that the appellant, aged 11 and with intellectual limitations, was proved beyond a reasonable doubt to have understood that his conduct was morally wrong.

The High Court dismissed all charges.  

Implications for doli incapax

The decision of RP v The Queen has clarified how courts should apply the common law presumption of doli incapax.

It is now clear that an accused child must be proven beyond a reasonable doubt to have understood that their actions were morally wrong. It is also now clear that courts must hear evidence of the environment in which the child has been raised, their progress at school and associated matters, in order to draw conclusions about their moral and intellectual development.  

Since the High Court handed down its decision in the matter of RP v The Queen, states that rely on the common law definition of doli incapax have seen dramatic drops in the number of successful prosecutions against children under 14. New South Wales has commenced a review of the operation of doli incapax in response to these statistics, to understand how the presumption is operating and whether any changes are needed.

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