A Child’s Capacity to Commit Crime: Examining the Operation of Doli Incapax in Victoria (Australia)

Abstract

The rebuttable presumption of doli incapax is available in all Australian states and territories and provides that, where a child is unable to comprehend the distinction between actions that are ‘seriously wrong’ and those that are ‘naughty or mischievous’, they cannot be held criminally responsible for their actions. Despite the key role that doli incapax should play in diverting the youngest offenders away from the criminal justice system, its operation to date has been largely unexamined. This article seeks to directly address this gap. Drawing on the experiences of those involved in all aspects of the youth justice system, this article examines the need for, and the effectiveness of, the presumption of doli incapax in Victoria, Australia. Revealing inconsistencies in the use of the presumption, the article also examines the need for future reform of this area of law.

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Except where otherwise noted, content in this journal is licensed under a Creative Commons Attribution 4.0 International License.
Published: 2019-02-19
Pages:18 to 33
Section:Articles
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Author Biographies

Monash University
 Australia

 Dr Kate Fitz-Gibbon is a Senior Lecturer in Criminology and a Honorary Research Fellow in the School of Law and Social Justice at University of Liverpool. She is a Lead Researcher in the Monash Gender and Family Violence Prevention CentreKate conducts research in the area of family violence, legal responses to lethal violence, youth justice and the effects of homicide law and sentencing reform. Kate has advised on homicide law reform, family violence and youth justice reviews in several Australian and international jurisdictions. 

Deakin University
 Australia

Dr Wendy O’Brien is Adjunct Associate Professor at Deakin University, and Legal Officer working on the Global Programme on Violence Against Children at the United Nations Office on Drugs and Crime, in Vienna. Wendy conducts work on child justice, violence against children, and children’s rights in the digital age. Wendy’s academic research is conducted in a personal capacity, and is not a reflection of the views of the institutions with which she is affiliated.