Doli Incapax in Victoria
If a child is accused of a criminal offence in Victoria, the principle of doli incapax may apply.
This principle is central to determining whether a child can be held criminally responsible.
At Stary Norton Halphen & Galbally, we act for children and families across Melbourne in criminal matters where doli incapax is in issue, including cases involving police interviews and proceedings in the Children’s Court.
What Is Doli Incapax?
Doli incapax means “incapable of crime”.
In Victoria:
A child under the age of 12 cannot be charged with a criminal offence
A child aged between 12 and 14 is presumed to be incapable of committing a criminal offence
This presumption applies unless the prosecution proves, beyond reasonable doubt, that the child understood that their conduct was seriously wrong.
When Can a Child Be Found Guilty?
For a child aged between 12 and 14 to be found guilty of an offence, the prosecution must establish:
That the child committed the alleged act; and
That, at the time of the conduct, the child understood it was seriously wrong by ordinary standards
It is not sufficient to show that the child knew they might be punished, or that they attempted to avoid detection.
The prosecution must prove that the child understood the conduct was wrong in a moral sense, according to adult standards.
Evidence Relevant to Doli Incapax
Whether the presumption is rebutted depends on the circumstances of the individual case.
The prosecution may rely on:
Statements made by the child
The nature and circumstances of the alleged conduct
Evidence of planning or concealment
The child’s age, maturity and development
Any prior warnings or relevant background
What a child says in a police interview may be relied upon to establish the required level of understanding.
Police Interviews Involving Children
If a child is to be interviewed by police, the matter should be approached with care.
A child has the right to remain silent. In all cases, a child should not participate in a police interview without first obtaining legal advice.
Answers given in an interview may be used by the prosecution to argue that the child understood that their conduct was seriously wrong.
It is incredibly important that you should speak to a lawyer before any decision is made about whether to participate in an interview.
Proceedings in the Children’s Court
Matters involving children are heard in the Children’s Court.
Where doli incapax is in issue, the court must determine whether the prosecution has rebutted the presumption of doli incapax.
If the prosecution cannot establish that the child understood that their conduct was seriously wrong, the charge must be dismissed.
The Importance of Early Legal Advice
Matters involving children require careful consideration from the outset.
Steps taken prior to any police interview may affect whether the presumption of doli incapax can be maintained.
Early legal advice will assist in:
Protecting the child’s position
Avoiding admissions that may be relied upon by the prosecution
Identifying whether doli incapax is properly in issue
Preparing the matter for hearing if required
Criminal Defence Lawyers Melbourne
If a child has been questioned or charged by police, legal advice should be obtained as soon as possible.
Stary Norton Halphen & Galbally act in criminal matters involving children in Melbourne and throughout Victoria, including cases where doli incapax arises.
Frequently Asked Questions
What age does doli incapax apply in Victoria?
It applies to children aged between 12 and 14. Children under 12 cannot be charged with a criminal offence.
Does doli incapax prevent a charge from being laid?
No. A child may still be charged. The issue is whether the prosecution can prove the child understood the conduct was seriously wrong.
What does “seriously wrong” mean?
It refers to wrongdoing according to ordinary adult standards, not simply behaviour that may result in punishment.
Should a child participate in a police interview?
Legal advice should be obtained before any interview. A child has the right to remain silent.
Can what a child says to police be used against them?
Yes. Statements may be relied upon to rebut the presumption of doli incapax.
For any information or assistance, please contact our legal team.
You can reach us at 03 8622 8200 or through our online form.