Doli Incapax Resources

• RP v The Queen [2016] HCA 53
• C v DPP (1996) 1 AC 1.
• R v CRH (Unreported, NSWCCA,18 December 1996).
• Johnson v The Queen [2018] HCA 48
• BC v R [2019] NSWCCA 111
• KG v Firth [2019] NTCA 5
• Birdsall v Western Australia [2019] WASCA 79
• BP v The Queen [2006] NSWCCA 172
• R v Gorrie (1918) 83 JP 136
• R v Runeckles (1984) The Times, 5 May 21.
• R v ME
• R v LT
• R v CE (Unreported, Supreme Court Common Law Division, 3 October 2002)
• R v Folling (Supreme Court of Queensland – Court of Appeal, 26 March 1998)
• LMS (1996) 2 Cr App R 50
• T v DPP [1997] Crim LR 127
• JM (a minor) v Runeckles (1984) 79 Cr App R 255;
• Ivers v Griffiths
• The Queen v M (1977) 16 SASR 589
• G v DPP (Unreported, Queen’s Bench Division, 14 October 1997)
• B v R [1958] 44 Cr App R 1.
• Graham v DPP [1997] EWHC Admin 869
• R v LMW

RP v The Queen [2016] HCA 53 is the leading case on doli incapax. It restated the principles in relation to the presumption of doli incapax, which had previously been set out in C v DPP (1996) 1 AC 1.

In RP, the High Court of Australia examined doli incapax. The Court made it clear that the prosecution bore the onus of rebutting the presumption of doli incapax as an element of the offence. RP was an appeal from a NSW case and highlighted several concerns with the operation and application of doli incapax.

In RP, the prosecution principally relied on inferences derived from the circumstances surrounding the (sexual) offence. Even where there were suggestions that RP may have had intellectual deficits and had been subject to abuse himself, the prosecution did not explore this further. For example, they did not make further inquiries with family members.^[4]

The High Court commented that the prosecution’s submissions were ‘apt to overlook’ the fact that the starting point is the presumption that children lack sufficient intellectual and moral capacity.^[5]

The case also raised questions about the prosecution only relying on inferences from the circumstances surrounding the offence.^[6] On this issue, the Court stated that the prosecution must point to evidence from which an inference can be drawn beyond reasonable doubt that the child's development is such that they knew that it was morally wrong to engage in the conduct. This directs attention to the child's education and the environment in which the child has been raised.^[7]

The cases that follow on this webpage apply RP to the question of the sufficiency of the Crown’s evidence to rebut the presumption of doli incapax. Other cases cite and discuss RP on the periphery and may be of potential interest.

See also the following cases that have followed or considered RP:

• Johnson v The Queen [2018] HCA 48
• BC v R [2019] NSWCCA 111, esp [40]-[58]
• KG v Firth [2019] NTCA 5
• Birdsall v Western Australia [2019] WASCA 79, esp [91]-[101].

RP v The Queen (2016) 259 CLR 641

Following a judge-alone trial, RP was convicted of two counts of sexual intercourse with a child under the age of 10 years (counts two and three) and one count of aggravated indecent assault (count four). RP was acquitted for one count of aggravated indecent assault (count one). The accused was aged approximately 11-and-a-half years old at the time of counts two and three, and 12 years and three months old at the time of count four. The complainant was the accused’s younger brother, who was aged six years and nine months when the offences charged in counts two and three allegedly occurred and was aged seven years and five months when the offence charged in count four allegedly occurred.

The sole issue for the trial judge’s determination was whether the prosecution had rebutted the presumption that the accused was doli incapax; that he lacked the capacity to be criminally responsible for his acts. The trial judge was satisfied that it was proven beyond reasonable doubt that the accused knew his conduct was seriously wrong in the earliest of the three offences. An appeal was allowed for the count of aggravated indecent assault but dismissed in relation to the two counts of sexual intercourse with a child aged under ten years.

The High Court held that the convictions on the remaining counts should be quashed and verdicts of acquittal should be entered, on the ground that it was not open to conclude that the accused was proven beyond a reasonable doubt to have understood that his conduct was seriously wrong in the moral sense. Kiefel, Bell, Gageler, Keane and Gordon JJ presiding.

Per Kiefel, Bell, Keane and Gordon JJ: To rebut the presumption of doli incapax, the prosecution must point to evidence from which an inference can be drawn beyond a reasonable doubt that the child’s development is such that he or she knew that it was seriously wrong in a moral sense to engage in the conduct. This directs attention to the child’s education and the environment in which the child has been raised. What suffices to rebut the presumption will vary according to the nature of the allegation and the child.

Per Gageler J (agreeing with the plurality): To rebut the presumption of doli incapax, the prosecution must prove beyond a reasonable doubt that the child understood that the child’s conduct which constituted the offence was seriously wrong by normal adult standards. Whatever conclusion might have been drawn from the evidence of the circumstances of the accused’s conduct about the accused’s understanding, that evidence had to be considered in the context of other evidence bearing on the mental capacity of the accused.

Proof that the appellant was doli incapax with respect to one offence did not prove that he was doli incapax with respect to the other offences. Where a particular offence is alleged, it must be proved that the child understood the act was morally wrong for the reason (or at least one of the reasons) the act is criminalised – that is to say, the child must understand the moral quality of that prohibition: (644).

The High Court stated that it cannot be assumed that a child of 11 years and six months understands that the infliction of hurt and distress on a younger sibling involves serious wrongdoing. No matter how obviously wrong the alleged offending is

The evidence of the appellant’s intellectual limitations, while not precluding a finding that the presumption has been rebutted, indicates the need for clear evidence that despite these limitations, the appellant possessed the requisite understanding of the wrongdoing. In the absence of evidence relating to the environment in which the appellant was raised and evidence of the appellant’s performance in school as an eleven-year-old, which could draw conclusions to his moral development, it was not open to conclude that the appellant, with his intellectual limitations, was proved beyond a reasonable doubt to have understood that his conduct was seriously wrong in a moral sense. [36].

Cases which apply or consider RP – ascending chronological order – superior courts

1. AL v The Queen [2017] NSWCCA 34 – NSW – jury directions – doli incapax – sufficiency of evidence proving knowledge of serious wrongness – rebutted

This appeal concerned a trial for historical sexual offences when the defendant was aged between 12 and 13 years and the complainant was aged between four and five years old. The charges were brought some 14 years after the offending took place.

On appeal, the applicant submitted that the trial judge fell into error by failing to adequately address the jury on the question of doli incapax and that the evidence adduced at trial fell short of proof of the applicant’s knowledge of the serious wrongness of the act charged. The applicant contended that in light of RP the trial judge should have directed the jury to place little or no weight on the applicant’s evidence in cross-examination.

Crown: I suppose, you would have known when you were 12 or 13 that it would have been seriously wrong to put your penis into a young boy’s mouth, wouldn’t you?

AL: I suppose I would have, yes.

There was also evidence suggesting the appellant was a good student at school at the time of the offending.

The Court held that on the totality of the evidence, the evidence was sufficient to prove the knowledge of serious wrongness beyond a reasonable doubt. In rejecting the appellant’s arguments, the Court stated at [137] “Although the applicant places heavy reliance on the outcome in RP v The Queen, that was a case that very much turned on its own facts. We do not understand it to have changed or developed relevant principle”. The Court distinguished the facts of AL from RP, taking note of the evidence suggesting the appellant’s good performance as a student and lack of disadvantage. RP was different, in that matter the only evidence adduced to rebut doli incapax was the complainant’s lack of consent and that he was hurt and upset. This was assessed alongside evidence suggesting that RP was disadvantaged, deprived and himself molested. Moreover, the Court in AL held that the evidence adduced from cross-examination was not inadmissible, his recollection of his contemporary understanding of serious wrongness was relevant and it was for the jury to give weight to that evidence.

1. BC v The Queen [2019] NSWCCA 111 – NSW – sufficiency of Crown evidence to rebut doli incapax – not rebutted

The appellant in BC had guilty verdicts returned against him two weeks before the High Court handed down its decision in RP. Like AL, BC concerned historical allegations of sexual assaults. The evidence adduced by the Crown pointed to three circumstances in the offending that were said to rebut the presumption [45]:

• The complainant was only five or six years old,
• When the appellant heard an adult moving around the house he said “quickly, stop, stop”, and
• The appellant said words to the effect of “you can’t tell anyone what just happened or else the [complainant] would get in trouble”.

The Crown did not adduce evidence as to the child’s education and environment.

Upon the application of RP, Leeming JA, Ierace J, and Hidden AJ held at [50] that “in the absence of any evidence concerning the applicant’s contemporaneous maturity or intelligence” the applicant’s age relative to the complainant (circumstance a) carried little weight in rebutting the presumption. Moreover, at [51] “the bare fact of the applicant’s age carries little weight in assessing his understanding of the degree to which his actions transgressed ordinarily standards of morality”.

The Court accepted that the circumstances of the offending (circumstances b and c) could rebut the presumption of doli incapax, but that the evidence adduced by the Crown was insufficient to do so at [54]. The words “quickly, stop, stop” were consistent with avoiding detection from an adult and were consistent with an understanding of the appellant’s actions were merely naughty or mischievous. Second, the warning that the complainant would get into trouble was indicative of the appellant being afraid of getting into trouble himself but said little about the appellant’s understanding of the moral wrongfulness of his actions.

1. KG v Firth (2019) 278 A Crim R 249 – NT – sufficiency of evidence to rebut presumption – appeal allowed – insufficiency to rebut

KG concerned an appeal to the Northern Territory Court of Appeal from a decision of the Northern Territory Supreme Court to overturn a decision of the Youth Justice Court that the appellant lacked mental capacity to be held criminally liable under s 43AQ of the Criminal Code (NT). The parties agreed on some facts relevant to the presumption; the appellant was 13 years old, he suffered significant intellectual disability, he suffered from Foetal Alcohol Spectrum Disorder, he was raised in dysfunctional and transient home environments, he suffered trauma from a young age including exposure to domestic and sexual violence.

The Court of Appeal took the opportunity to articulate the categories of evidence relevant to the question of doli incapax at [27]. These categories are: “any admissions made by the appellant; the nature of the alleged conduct (subject to the qualification that the presumption cannot be rebutted merely as an inference from the doing of the act); the circumstances surrounding the conduct, including any attempts at concealment or escape; and the appellant’s background, including his education, upbringing, mental capacity and any previous criminal convictions”. The Court made a number of comments clarifying RP including that the rebuttal of the presumption does not require, in every case, the demonstration of knowledge of wrongness in a police interview, or evidence concerning the child’s social, medical and educational circumstances at [29]. Significant weight will ordinarily be given to a child’s psychologists views as to the ability to understanding right from wrong [29].

The Court allowed the appeal, finding that the trial judge’s finding of reasonable doubt was not so unreasonable to make the decision irrational or arbitrary. The Court appeared to balance the appellant’s “degree of calculation” in luring the complainant into an alleyway and significant use of force against the social, health and environmental factors discussed above. The Court of appeal concluded that it was open to the trial judge to make that finding and the appeal was allowed.

Cases which apply or consider RP – lower courts

1. R v KAK [2020] QDC 244

KAK involved a 13-year-old and an application by the prosecution to rebut the presumption of doli incapax. The crown tendered five categories of evidence which will be briefly described:

• The respondent’s interview with the police – in the interview, the respondent stated that “she kissed me and then I went too far” – the interview also contained denials, alleged lies which were probative of the respondent’s understanding of the questions and of his understanding of right and wrong. In the interview a hypothetical was put to him about whether it was wrong to throw a punch, and that you would get into big trouble for doing so
• The respondent’s school records – the respondent required literary support at school and had some behavioural issues
• The respondent’s cognitive assessment – the respondent had an intellectual development disorder
• The respondent’s age – 13 years and five months, on the sliding scale of doli incapax this lowered the threshold necessary to rebut the presumption
• The facts of the offending, inter alia:
  • The respondent would strike the complainant if she screamed as he was dragging her to J Block
  • When the respondent was penetrating the complainant, he warned her not to scream
  • When the offending had finished the respondent threatened that “don’t tell anyone or I will come and find you”

Despite the intellectual limitations of the respondent – and Coker DCJ specifically referenced RP on the point of intellectual capacity – Coker DCJ found that the facts of the offending and the respondent’s own admissions in the recorded interview that he had “gone too far” indicated that “the respondent had the capacity to understand that what is alleged to have been done ought not to have been done by him, at least without the clear consent of the complainant”. Accordingly, the presumption of doli incapax was rebutted.

Cases which reference RP on questions other than discharging doli incapax but potentially still of relevance

1. Paul Campbell (a pseudonym) v The Queen [2018] NSWCCA 87 and Williams v IM [2019] ACTSC 234

Both Williams and Campbell have obiter suggesting that a plea of guilty entered into by a child provides strong evidence rebutting the presumption of doli incapax, at least at common law. Williams also stands for the proposition that in the ACT the onus is on the defendant to raise and discharge the statutory onus placed on criminal child capacity: [53]-[54]

1. R v CP [2020] NSWDC 294 – admissibility of tendency evidence when the accused is doli incapax

In CP, tendency evidence of an uncharged act, where at the time of the uncharged act the Crown conceded it could not rebut the presumption of doli incapax beyond a reasonable doubt, was admitted to prove the tendency of the accused to be sexually attracted to the complainant and a tendency to act on that sexual attraction.

Analysis

The preceding analysis of RP and its application suggests that the requisite standard of proof of knowledge of serious wrongness is consistently fact and case-specific. Three other conclusions may be drawn from the case law.

Firstly, in the event that a child is charged and subsequently enters pleas of guilty on arraignment, those pleas of guilty will be strong evidence rebutting the presumption of doli incapax (See Campbell and Williams).

Secondly, in the two cases above where the presumption was rebutted, significant weight was given to admissions that the alleged behaviour was wrong. In AL, there was an admission adduced in cross-examination at trial, and in KAK, there was a concession that the accused had gone “too far” in his behaviour. In the latter case, the accused’s significant intellectual limitations were dismissed. It would appear that the weight given to intellectual limitations by their Honours in RP is reduced when the child in question admits that the behaviour is wrong in some form.

Thirdly, the severity and moral wrongfulness of the offending itself cannot support a rebuttal of the presumption. Prosecutors since RP cannot solely rely on the nature of the offence, or an impression of the child’s mind at the time of offending to rebut the presumption.