RP v The Queen: rebutting the presumption of doli incapax

It is a steadfast presumption of criminal law that children aged 10 but not yet 14 lack sufficient intellectual and moral development to be held criminally responsible (presumption of doli incapax). This presumption has been subject to a degree of criticism in recent decades. Some claim it is over-protective of children and should be abolished, reversed or the age level reduced (see eg Lerve DCJ in 'R v GW' [2015] NSWDC 52 at [41]-[46]). In contrast, others claim it is under-protective because the age level is too low and it is easily rebutted (Australian Law Reform Commission (1997). Seen and Heard: Priority for Children in the Legal Process, Report No 84). Many of these criticisms stem from a lack of clarity over how the presumption should operate and assumptions about childhood development and what affects a child's ability to understand. This article will not rehash the criticisms (for discussion see Crofts (2016) 'The common law influence over the age of criminal responsibility - Australia' Northern Ireland Legal Quarterly, 67(3), 283-300). Rather, it will examine the recent judgment of the High Court in the case of 'RP v The Queen' [2016] HCA 53 ('RP v The Queen'), exploring what the presumption requires and clarify what sort of evidence has been held to be sufficient to rebut the presumption.